Category: Environmental Impact Report (EIR)

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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 Third District Says Level of Service No Longer Valid to Measure Traffic Impacts, But Use of Vehicle Miles Traveled is Not Yet Required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

Fifth Appellate District Invalidates Kern County Oil and Gas Ordinance

On Tuesday, February 25, 2020, the Fifth Appellate District invalidated Kern County’s 2015 Oil and Gas Ordinance (the “Ordinance”), which was intended to streamline the permitting process for a variety of oil and gas activities within unincorporated portions of the County, including for oil and gas production wells and related infrastructure such as well pads … Continue Reading

Third District Holds City’s Explanation and Substantial Evidence Supported Traffic Impact Conclusion, Discharge of Writ of Mandate Proper

In reviewing whether the City of Sacramento complied with a peremptory writ of mandate issued by the Sacramento Superior Court (East Sacramento Partnership for a Livable City v. City of Sacramento (2016) 5Cal.App.5th 281 (ESPLC I)), the Third District Court of Appeal ruled that the City had explained and provided substantial evidence supporting both its … 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

County General Plan EIR Need Only Address “Reasonably Foreseeable Development” Outside the Planning Area, Population Reports in the Record Showed Possible Subdivision Unlikely

In High Sierra Rural Alliance v. County of Plumas (2018) 29 Cal.App.5th 102, the Third District Court of Appeal held a general plan update and EIR were valid where evidence in the record supported the County of Plumas’ (County) determination that there was no “reasonably foreseeable development” outside the planning area. The Court also held … Continue Reading

California Supreme Court Hears CEQA Appeal Questioning the Appropriate Legal Standard of Review for EIR Challenges and the Need for More Specific Health Impact Analyses

On October 2, after waiting over three-and-a-half years, the California Supreme Court finally heard oral arguments in Sierra Club et al. v. County of Fresno et al. (Case No. S219783).  This case, which challenges an EIR prepared for the Friant Ranch retirement community in Fresno County, raises far-reaching and consequential CEQA questions, namely, the standard … Continue Reading

Population Projections Proper Baseline for San Francisco General Plan Housing Element Update

In San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018) 26 Cal.App.5th 596, the First District Court of Appeal held the City of San Francisco (City) general plan housing element EIR satisfied CEQA in using 2025 population projections as a baseline for a growth-accommodating policy and adequately considered traffic impacts, water needs, … Continue Reading

Second Appellate District Calls Settlement Agreement Part of “Project” for CEQA Consideration In Line with Historically Broad “Project” Definition

In County of Ventura v. City of Moorpark (2018) 24 Cal.App.5th 377, the Second Appellate District upheld a CEQA statutory exemption applied to a project undertaken by the State-created Broad Beach Geologic Hazard Abatement District (BBGHAD) and clarified that a “project” for CEQA consideration may be two separate activities if they serve a single purpose, … Continue Reading

First Appellate District Upholds Several Aspects of the EIR Prepared for Phillips 66 Efforts to Enhance Recovery of Petroleum Refinery Products

In a March 2018 decision, the First Appellate District examined several CEQA issues pertinent to petroleum refining and hazardous materials transport.  In Rodeo Citizens Association v. County of Contra Costa, the appeals court affirmed several findings of the lower court, dismissing challenges to the environmental impact report (“EIR”) prepared for a propane and butane recovery … Continue Reading

Update: SCOTUS Declines Review of Friends of the Eel River CEQA Preemption Decision

The United States Supreme Court will not be taking up the California Supreme Court’s July 2017 decision in the Friends of the Eel River case.  In that decision, authored by Chief Justice Cantil-Sakauye, the California Supreme Court held that the federal Interstate Commerce Commission Termination Act (ICCTA) did not preempt application of CEQA to the … Continue Reading

Appeals Court Finds that EIR for Planned Los Angeles Railyard for Storage and Transfer of Goods Failed to Sufficiently Consider Air Quality Impacts

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 … Continue Reading

Fifth Appellate District Upholds City of Visalia’s General Plan Update Against Challenge to Square Footage Restrictions in Neighborhood Commercial Zones

On January 30, 2018, the Fifth Appellate District certified for publication its earlier opinion in Visalia Retail, LP v. City of Visalia, upholding the City of Visalia’s (“City”) 2014 General Plan Update.  Plaintiff and Appellant, Visalia Retail, LP (“Plaintiff”), challenged the City’s General Plan land use policy LU-P-67, which set a 40,000-square-foot size limitation in … Continue Reading

CARB Regulatory Advisory “Project Approval” Triggers CEQA Review Despite Agency Certified Regulatory Program, Public Testimony Must Be Adequately Addressed to Meet Cal APA Standards

In John R. Lawson Rock & Oil, Inc. v. State Air Resource Board (2018) 20 Cal. App. 5th 77, the Fifth District Court of Appeal found the California Air Resources Board’s (CARB) issuance of a regulatory advisory was “project approval” triggering CEQA review. Doing so prior to completion of environmental review violated CEQA timing requirements. … Continue Reading

Second Appellate District Rejects Challenge to EIR Alternatives Analysis for West Hollywood Redevelopment Project

On December 22, the Second Appellate District certified for publication its November 30 opinion in Los Angeles Conservancy v. City of West Hollywood, concerning a proposed mixed-use redevelopment of the “Melrose Triangle” site that would result in demolition of the existing buildings.  In this decision, the Court rejected the Conservancy’s claim that the City gave … Continue Reading

First District Court of Appeal Considers Certified Regulatory Programs’ Potential Mitigation Measure Disclosure Standards

In Living Rivers Council v. State Water Resources Control Board (2017) 15 Cal.App.5th 991, the First District Court of Appeal upheld the State Water Resources Control Board’s (“Board”) approval of a policy to maintain instream flows of Northern California coastal streams (“Policy”) for the purposes of water rights administration under Water Code section 1259.4. While … Continue Reading

First Appellate District Rejects Urban Decay Claim, Upholds EIR for New El Dorado County Courthouse

Since the 2004 decision in Bakersfield Citizens for Local Control v. City of Bakersfield, CEQA petitioners challenging development projects often assert that the lead agency has failed to adequately analyze urban decay (“blight”) impacts on historic downtown areas or other existing business districts.  However, such claims have met with limited success.  (See, for example, our … 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

California Supreme Court Again Considers Climate Change in the Context of CEQA, But Fails to Resolve Important Uncertainties for Future Environmental Review

Today, in an opinion authored by Justice Liu, the California Supreme Court ruled that the greenhouse gas analysis in an environmental impact report (“EIR”) prepared for the San Diego Association of Government’s (“SANDAG”) regional transportation plan (“RTP”) did not violate the California Environmental Quality Act (“CEQA”), but did little to resolve uncertainties in addressing climate … Continue Reading

The California Supreme Court Has a Banner Week, Hearing Argument in Three CEQA and Land Use Cases

On May 3–4, 2017, the California Supreme Court heard oral arguments in three cases with significant implications for California land use law. Below we summarize the main issue(s) argued in each matter and possible outcomes. Because many of these cases have been pending for years, the Court that originally voted to grant review has since … Continue Reading

Third District Finds that EIR for Residential Development Inadequately Assessed Traffic Impacts

Cities charged with preparing EIRs for proposed projects often look to their general plans and other adopted policies to set thresholds of significance for assessing environmental impacts. A lead agency’s discretion to select a particular significance threshold has long been afforded deference under CEQA’s “substantial evidence” standard of review. Potential impacts assessed under a general … Continue Reading

Limitations on Subsequent Review Under CEQA

Since 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 … Continue Reading
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