CEQA Guidelines

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On January 3, 2019 the Natural Resources Agency (“Agency”) announced that the long awaited comprehensive amendments to the CEQA Guidelines are now in effect.  The last major update to the Guidelines was in the late 1990s.  As a result, the Agency and the Office of Planning and Research (OPR) had a significant amount of material to synthesize in preparing these amendments, including several legislative changes and over two decades of CEQA case law.

The amendments include two new sections and revisions to 29 existing sections and three appendices.  Many of the revisions merely reflect holdings from previous case law and will not generate new requirements in preparing CEQA documents.  Some revisions, however, do constitute substantive changes in impact analysis and it will be important for public agency staff, environmental consultants, and attorneys to review these amendments carefully.  To access a complete copy of the revised CEQA Guidelines click here.

After a long drought, the California Supreme Court at its November 14, 2018 conference voted unanimously to grant review of three decisions involving the question of whether well permits issued pursuant to county ordinances and incorporating state groundwater well-drilling standards are ministerial and thus not subject to review under the California Environmental Quality Act (“CEQA”).  Although interpreting different county well ordinances enacted by San Luis Obispo and Stanislaus Counties, the ordinances each incorporated state well-drilling standards (Bulletin 74).  Yet, the Second and Fifth Districts reached diametrically opposing conclusions regarding whether those ordinances require the exercise of discretion.

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…

The CEQA Statute and Guidelines both contain provisions outlining what types of projects are exempt from environmental review. There are dozens of exemptions, however, that are listed in other provisions of the California codes that can be difficult to find. On June 6, 2018, the Governor’s Office of Planning and Research (OPR) released a helpful…

On January 12, 2018, the First Appellate District held that the California Attorney General need not exhaust administrative remedies in order to contest the adequacy of Environmental Impact Reports (EIRs) under the California Environmental Quality Act (CEQA), as is normally required of third-party challengers under Section 21177.  City of Long Beach v. City of Los Angeles, Case No. A148993 (2018).  The Appeals Court also held that BNSF Railway Company’s (BNSF) proposed construction of a new railyard in Southern California failed to adequately consider air quality impacts from the project.  The case emphasizes the need for EIRs to consider impacts to ambient air pollutant concentrations and the cumulative impacts of such pollutants under CEQA, even if the underlying analysis may be time consuming and difficult to generate.

SF MuniSince the California Supreme Court’s 2016 ruling in Friends of the College of San Mateo Gardens v. San Mateo County Community College District, California appeals courts have issued a spate of decisions addressing subsequent review under the California Environmental Quality Act (“CEQA”), including two in the last two months of 2016.  In both cases, the appeals court upheld the agency’s decision not to undertake further environmental review.

Crane and building construction site against blue skyOn September 19, in a long-awaited and unanimous decision, the California Supreme Court issued its decision in Friends of the College of San Mateo Gardens v. San Mateo County Community College District.  The opinion, authored by the Court’s newest justice, Leondra Kruger, resolves a split among the Courts of Appeal regarding the proper procedures for addressing changes to a project that have already been subject to CEQA review.  The Court clarified that such changes are not subject to an independent, “new project” threshold test, and that an agency’s decision that no EIR is required as a result of proposed modifications to a previously-approved project is subject to review for substantial evidence.  The decision also affirmed the validity of CEQA Guidelines section 15162 and its application of the principles of finality and subsequent review to projects originally approved with a negative declaration.

Car Exhaust in TrafficOn remand from the California Supreme Court, the First Appellate District has issued its second ruling in California Building Industry Assn. v. Bay Area Air Quality Management District. In this case, CBIA challenged BAAQMD’s 2010 “CEQA Air Quality Guidelines”—specifically, the Guidelines’ thresholds and methods for assessing the effects of siting new sensitive receptors (residences) near existing sources of toxic air contaminants and other harmful air emissions, such as freeways. Last year, the California Supreme Court held that CEQA “does not generally require an agency to consider the effects of existing environmental conditions on a proposed project’s future users or residents” (so-called ‘CEQA-in-Reverse’). Requiring analysis of the existing environment’s effects on a project, the Supreme Court emphasized, would “impermissibly expand the scope of CEQA.” The Supreme Court remanded the case to the First District Court of Appeal to apply its general ruling to the specific aspects of the BAAQMD Guidelines still in dispute.

Railroad Tank CarsOn July 19, the First District Court of Appeal published its opinion in Communities for a Better Environment v. Bay Area Air Quality Management District. In this case, Communities for a Better Environment (CBE) and a host of other environmental groups sought to challenge a rail-to-truck facility for the transloading of crude oil permitted by the Bay Area Air Quality Management District (BAAQMD). The appeals court affirmed the trial court’s ruling that CBE’s petition was time barred under Section 21167(d) of the Public Resources Code for failure to bring the claim within 180 days of BAAQMD’s approval of an Authority to Construct (ATC) that authorized the transloading of Bakken crude. In doing so, both courts rejected the argument by CBE that the “discovery rule” should apply in CEQA cases where, as here, there is no public notice of the approval.