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“Self-Governance,” Not “Regulation”: California Supreme Court Rules No Federal Preemption of CEQA under ICCTA for State-Owned Rail Projects

On July 27, the California Supreme Court released its long-awaited decision in Friends of the Eel River v. North Coast Railroad Authority (S222472), resolving a split among the State’s courts of appeal—but arguably conflicting with federal precedent—with respect to the scope of federal preemption of CEQA with respect to state-owned rail projects. We discussed 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

First Appellate District Holds that Air Quality Management District’s Issuance of “Authority to Construct” May Be Challenged Under CEQA

On May 25, 2017, the First Appellate District published a modified version of its unpublished March 23, 2017 opinion, holding that the Mendocino County Air Quality Management District’s (“MCAQMD”) issuance of an “Authority to Construct” (“ATC”) for an asphalt production plant could be challenged under CEQA.  In Friends of Outlet Creek v. Mendocino County Air … 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

A Rare Decision on Preclusion in the CEQA Context

In May 2017, the Fifth Appellate District published a decision addressing preclusion, which is rarely a topic in CEQA litigation.  On demurrer, the Kern County Superior Court found that a CEQA petition was barred by res judicata in light of a prior judgment entered in Alameda County (the “Alameda Action”).  In Association of Irritated Residents … Continue Reading

Second District Denies Mandatory Relief from Adverse Judgment to Plaintiff Whose Counsel Failed to Timely Lodge Administrative Record

On April 13, the Second Appellate District disapproved two of its prior decisions that had expansively interpreted the availability of mandatory relief from default or dismissal under Code of Civil Procedure section 473(b). In The Urban Wildlands Group, Inc. v. City of Los Angeles, the court held that this mandatory relief provision did not apply … 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

Surface Transportation Board Discusses Boundaries of Federal Preemption of CEQA and Local Land Use Requirements, Denies Petition by Refinery Over Crude-By-Rail Facility

The extent to which the federal Interstate Commerce Commission Termination Act (ICCTA) preempts CEQA has been a topic of much scrutiny recently. Currently pending before the California Supreme Court is Friends of the Eel River v. North Coast Railroad Authority (Case No. S222472), which will address whether the ICCTA preempts CEQA review of a state … Continue Reading

White House Council on Environmental Quality Issues Final Guidance on Consideration of Climate Change in NEPA Review

Guest author Darrin Gambelin, a Downey Brand associate, contributes today’s post. On August 1, The White House Council on Environmental Quality (CEQ) issued its Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews (Guidance), which provides federal agencies with … Continue Reading

Appellate District Rejects ‘Discovery Rule’ in CEQA Cases and Holds Challenge to Richmond Crude-By-Rail Facility Untimely Under 180-day Statute of Limitations

On 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 … Continue Reading
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