On May 25, 2017, the First Appellate District published a modified version of its unpublished March 23, 2017 opinion, holding that the Mendocino County Air Quality Management District’s (“MCAQMD”) issuance of an “Authority to Construct” (“ATC”) for an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 Quality Management District, the trial court had sustained a demurrer by the MCAQMD and the applicant on the grounds that petitioner could only challenge the ATC approval in a proceeding under Health and Safety Code section 40864. The First Appellate District reversed, finding ample legal authority for administrative mandate proceedings under CEQA to challenge issuance of permits by air quality management districts.
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 been dramatically transformed by Governor Brown’s newest appointments, including Justices Cuéllar and Kruger. Consequently, predicting the likely outcome in any of these cases is particularly difficult.
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 v. Department of Conservation (2017) 11 Cal.App.5th 1202, the Fifth District reversed, and it also addressed the issue of collateral estoppel in the context of a motion to dismiss the appeal.
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 to an adverse judgment at a CEQA merits hearing, resulting from plaintiff’s failure to lodge the administrative record with the court prior to the hearing.
The underlying mandate petition and complaint alleged a single cause of action challenging the City’s finding that a streetlight replacement project using LED lights was exempt from environmental review under CEQA. The parties stipulated that plaintiff would prepare the administrative record and, following certification by the City, lodge it with the trial court. However, plaintiff never lodged the certified record. At the hearing on the merits, the trial court determined that plaintiff could not present sufficient evidence to support its arguments because it failed to lodge the record. Accordingly, the trial court denied the plaintiff’s petition and complaint and entered judgment in favor of the City.
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
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 agency’s proprietary acts with respect to a state-owned or funded rail line (which is at issue in both that case and in Town of Atherton v. California High Speed Rail Authority (2014) 228 Cal.App.4th 314). The case has been fully briefed since April 2015 and is awaiting oral argument.
In the meantime, a September 20 decision by the federal Surface Transportation Board (STB) has addressed ICCTA preemption in the context of a proposed crude-by-rail facility. These facilities have garnered much public attention in California and resulted in CEQA challenges to several proposed projects. In this decision, the STB denied Valero Refining Company’s petition, finding that the ICCTA did not preempt the City of Benicia’s decision to deny certification of an environmental impact report (EIR) and deny a conditional use permit (CUP) for a crude-by-rail offloading facility at Valero’s Benicia refinery. The decision provides insight into the federal government’s view of CEQA preemption, which will be of interest to the Supreme Court and the parties to the Friends of the Eel River case, as well as to lead agencies and project proponents contemplating crude-by-rail and other rail-related facilities in California.
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 a framework for analysis of greenhouse gas emissions and climate change in connection with environmental review under the National Environmental Policy Act (NEPA). This is a significant step in the developing law of climate impact analysis, as state and federal agencies alike continue to struggle to measure, analyze, and mitigate for localized, incremental contributions to this global problem.
The Guidance advises federal agencies to examine both the effects of the proposed project on climate change and the effects of climate change on the project. The guidance does not apply retroactively to projects with a completed NEPA review, but CEQ encourages agencies to adopt these procedures for projects currently under review. As guidance, the policies within are not binding, but in practice agencies generally defer to CEQ; so, applicants can expect federal agencies to apply the new policies to projects moving forward.
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 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.
CEQA Portal, New Web Resource for CEQA Practitioners, Now Available
We want to let our readers know about the CEQA Portal, a new CEQA reference website being developed by the Association of Environmental Professionals (AEP). The site currently features two tools that CEQA lead agencies, project applicants, consultants, and attorneys will find useful.
The first tool is a series of topic papers, each prepared