Kathryn L. Oehlschlager

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With more than a decade of experience in environmental law, Kathryn Oehlschlager has built a robust practice spanning environmental and land use compliance counselling, state and federal enforcement defense, and major litigation.

Public and private clients turn to Kathryn for advice on compliance with all facets of environmental and land use law, including CEQA, NEPA, federal and state endangered species laws, contaminated site remediation, water quality and supply issues, and laws regulating solid and hazardous waste.  She routinely represents clients in all aspects of the California Environmental Quality Act (CEQA) project review process, including preparation, review, and analysis of negative declarations, draft environmental impact reports, and final environmental impact reports. (Read more…)

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California Enacts More Than Two Dozen Laws This Year to Combat Housing Crisis

This legislative year, Governor Gavin Newsom signed into law thirty-one pieces of legislation designed to combat California’s ongoing housing crisis by providing tools to expand housing production, streamline housing permitting, and increase allowable density across the state.  Key housing-related bills, which take effect on January 1, 2022, unless otherwise noted, are discussed below. SB 7, … Continue Reading

Real Parties in Interest Are Not Automatically Indispensable Parties to CEQA Litigation

In Save Berkeley’s Neighborhoods v. The Regents of the University of California, Case No. A160560, the Court of Appeal held that under the California Environmental Quality Act (“CEQA”) and related procedural rules, real parties in interest are not automatically considered indispensable parties to CEQA litigation.  Whether a real party in interest is indispensable turns on … Continue Reading

Petitioners Strike Out—Court Finds Statutory Deadline Does Not Preclude Streamlining of Oakland A’s Stadium Project

In August 2021, the First District Court of Appeals issued an opinion in Pacific Merchant Shipping Association v. Newsom, where the court held that Public Resources Code section 21168.6.7 does not impose on the Governor a deadline by which to certify construction of a new baseball park and mixed-use development project at the Howard Terminal … Continue Reading

First District Court of Appeal Finds CEQA Claim Time-Barred Due to Insufficient Tolling Agreement

  On June 30, 2021, in Save Lafayette Trees, et. al v. East Bay Regional Park District (Pacific Gas and Electric Company, Real Party in Interest), the First District Court of Appeal upheld the dismissal of a CEQA claim as time-barred because it found that PG&E, a necessary and indispensable party, was not bound to … Continue Reading

Residents’ Comments About Existing Fire Hazards Do Not Constitute Substantial Evidence of a New Project’s Impacts Under CEQA

In June 2021, the Third District Court of Appeal upheld the County of El Dorado’s (“County”) mitigated negative declaration (“MND”) for a bridge construction project against complaints that the project’s construction would block an evacuation route for residents in the event of a wildfire. In its holding in Newtown Preservation Society v. County of El … Continue Reading

First District Denies Challenge to Napa County Approval of Mining Operations Because Petitioner Failed to Exhaust Administrative Remedies and CEQA Requires Limited Review of General Plan Consistency

In Stop Syar Expansion v. County of Napa (2021) 63 Cal.App.5th 444, the First District Court of Appeal upheld Napa County’s Environmental Impact Report (EIR) for the expansion of Syar Industries, Inc.’s aggregate mining operations at a local quarry. Citizen group Stop Syar Expansion (“SSE”) filed a Petition for Writ of Mandate under CEQA claiming … Continue Reading

Good News for California Housing: SB 7 Extends Expedited CEQA Review to Small-Scale Infill Housing Projects

On May 20, 2021, California Governor Gavin Newsom signed into law Senate Bill 7, known as the Housing and Jobs Expansion and Extensions Act, which extends expedited California Environmental Quality Act (CEQA) judicial review for small-scale housing developments.  In 2011, Assembly Bill 900, known as the Jobs and Economic Improvement Through Environmental Leadership Act, created … Continue Reading

In First Published Opinion Interpreting SB 35, Court of Appeal Rejects City of Berkeley’s Attempts to Avoid Application of the Law and Orders Streamlined Approval of Mixed-Use Infill Project

On April 20, 2021, the First District Court of Appeal filed its first published opinion interpreting California Senate Bill 35’s streamlining provisions in Ruegg & Ellsworth v. City of Berkeley.  The Court held that the City of Berkeley erred in finding a mixed-use development project ineligible for SB 35 streamlining.  Because the project met the … Continue Reading

First Appellate District Approves Responsible Agency’s Imposition of Mitigation Not Considered in the EIR

In an opinion filed on December 29, 2020, the First Appellate District in Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board upheld a Responsible Agency’s imposition of additional mitigation more than a year after it had issued an initial approval for the project.  Although the court was careful to … Continue Reading

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 … 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 … 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 … Continue Reading

Two CEQA Statute of Limitations Cases, Two Different Results

California Courts of Appeal recently issued two cases addressing the strict statute of limitations applicable to agency action under CEQA. Citizens for a Responsible Caltrans Decision v. Department of Transportation –  (March 24, 2020, D074374) __ Cal.5th__ The Fourth District in Citizens for a Responsible Caltrans Decision v. Department of Transportation overturned a lower court’s … Continue Reading

COVID-19 Alert: Judicial Council Issues Sweeping Emergency Rules; Local Agencies Issue Regional Changes

In response to the COVID-19 pandemic, the state and several local jurisdictions have issued orders/rules in the last few weeks that affect not only the timing of processing land use and planning entitlements, but also the filing of California Environmental Quality Act (CEQA) and other claims challenging land use projects and approvals in California courts. … Continue Reading

California Supreme Court Holds Medical Marijuana Zoning Ordinance is a Project Subject to CEQA

Every CEQA analysis begins with the threshold question of whether the activity is a “project” as defined by Public Resources Code section 21065 and 21080. In Union of Medical Marijuana Patients, Inc. v. City of San Diego, the California Supreme Court held that regardless of the nature of a project, CEQA applies if it “may … 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 … 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 … 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 … Continue Reading

Clean Sweep for City of San Diego in Challenge to Approval of Private School

On December 20, 2017, the Fourth District Court of Appeal delivered a solid win for the City of San Diego in a multi-faceted challenge to its approval of a private school pursuant to a Mitigated Negative Declaration (“MND”).  In Clews Land and Livestock LLC et al. v. City of San Diego, Petitioners Clews Land and … Continue Reading

DWR Certifies EIR for WaterFix, Triggering 30-Day Deadline for Opponents to File Suit

On July 21, 2017, the California Department of Water Resources (“DWR”) certified the final environmental document and issued its Notice of Determination for the California WaterFix, a significant new water infrastructure component proposed by DWR and United States Bureau of Reclamation. DWR’s action triggered a 30-day statute of limitations to raise CEQA challenges to the … Continue Reading

Up One Day, Down the Next—California Air Resources Board Receives Mixed Reviews in its Implementation of its Cap-and-Trade Program and Low Carbon Fuel Standard

In recent weeks, California appellate courts issued two decisions regarding California Air Resources Board (CARB) programs implemented under AB32, the Global Warming Solutions Act, with mixed results.  The first decision upheld the legality of a key element of CARB’s cap-and-trade program, the auction of emission credits.  In that case, the Third Appellate District rejected an … Continue Reading

Fourth District Leaves Door Open for Attorney-Fee Award to Real Party in Interest

The Fourth District Court of Appeal recently issued its opinion in Save Our Heritage Organisation v. City of San Diego (2017) 11 Cal.App.5th 154, the latest round of litigation over the site development plan for a revitalization project in San Diego’s Balboa Park, finding that, under some circumstances, a project proponent may recover attorneys’ fees … Continue Reading

Ninth Circuit Upholds Final EIS for Tahoe Area Regional Plan Update

In Sierra Club v. Tahoe Regional Planning Agency, the Ninth Circuit affirmed the district court’s summary judgment in favor of the Tahoe Regional Planning Agency (“TRPA”), finding that the TRPA’s final Environmental Impact Statement (“EIS”) for the agency’s Regional Plan Update (“RPU”) sufficiently addressed localized impacts on soil erosion and water quality. The 2012 RPU, … Continue Reading

Fifth District Allows Real Party to Recover Costs of Record Preparation

On, September 12, 2015, the Fifth District Court of Appeal issued its opinion in Citizens for Ceres v. City of Ceres (2016) _Cal.App.5th_.  The opinion authorized real-parties-in-interest to recover costs of record preparation, as long as the record was prepared in a manner prescribed by Public Resources Code section 21167.6. The petitioners in this action … Continue Reading
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