iStock_95911999_SMALL copyGuest 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.

The City of Fresno’s Fulton Street lies in the heart of its downtown and was once a bustling commerce center lined with numerous retailers. Suburbanization drew those retailers to the periphery of town in the 1950s. In the early 1960s, in an attempt to revive its urban core, the City turned Fulton Street into Fulton…

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.

After successfully defending a challenge to a resolution granting nonconforming use status to a mining operation in Santa Clara County, Respondent’s attorney filed a motion to recover costs associated with the preparation of the administrative record. This included the labor costs for the attorneys and paralegals who had assisted with the preparation of the large…

In Jamul Action Committee v. Chaudhuri, 2016 U.S. App. LEXIS 13104, the Ninth Circuit held that the National Environmental Protection Act (NEPA) did not apply to the Jamul Indian Village Casino project in Jamul, California due to an irreconcilable timing conflict between NEPA and the Indian Gaming Regulatory Act (IGRA).

The Jamul Indian Village (Tribe),…

Joshua TreeWhen cities and counties conduct CEQA review of a large-scale commercial development project including a major national chain like Wal-Mart or Costco, a common objection is that the project will displace existing, locally owned retail establishments, resulting in a significant impact on the environment, in the form of urban decay (or “blight”). This is generally understood to involve abandoned buildings or shopping centers physically deteriorating and becoming a magnet for graffiti, gang/drug activity, and illegal dumping. This claim is often brought in CEQA litigation resulting from approval of such retail projects.

Recently, Division Two of the Fourth Appellate District issued its decision in Joshua Tree Downtown Business Alliance v. County of San Bernardino (June 15, 2016; certified for partial publication on July 13, 2016), upholding a mitigated negative declaration and addressing a key issue for lead agencies and courts evaluating an urban decay claim: when do the comments or testimony of a lay witness constitute substantial evidence of an urban decay impact? The appellate court also rejected a claim of general plan inconsistency, affirming the broad discretion that local governments enjoy in interpreting their general plans.

In Duarte Nursery, Inc. v. United States Army Corps of Engineers, 2016 U.S. Dist. LEXIS 76037, the Eastern District of California granted the U.S. Army Corps of Engineers’ (“Corps”) motion for summary judgment, finding that Duarte Nursery (“Nursery”) had violated the federal Clean Water Act (“Act”) by moving dirt around its property as part…

In 2012, the City of Kingsburg began the process of annexing approximately 430 acres of land in Fresno County, including developed land that was home to three major facilities: a glass manufacturing plant, a grape processing facility, and a raisin processing plant. The land proposed for annexation separates the City of Kingsburg from the City…

Golden Gate TrafficSince the passage of AB 32 in 2006, the methods for climate change analysis under CEQA have taken a number of turns. Most recently, the California Supreme Court in Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204, concluded that an EIR for a major development project (Newhall Ranch) lacked substantial evidence to show that the project’s reductions in emissions would be consistent with AB 32’s statewide goal for greenhouse gas (GHG) reductions by the year 2020. In a harbinger of its impending opinion in Cleveland National Forest v. San Diego Assoc. of Governments, the Court suggested that AB 32’s goal for 2020 may become less and less relevant as 2020 fast approaches. The Supreme Court’s opinion did state, however, that “[w]hile the burden of CEQA’s mandate in this context can be substantial, methods for complying with CEQA do exist”—expressly referencing consistency with regional climate action plans or sustainable communities strategies under SB 375.

On June 30, the First Appellate District issued an opinion that offered some hope to agencies struggling with climate analysis by rejecting a challenge to the regional GHG reduction mandates of “Plan Bay Area,” the sustainable communities strategy developed by the Metropolitan Transportation Commission (MTC) and Association of Bay Area Governments (ABAG) to comply with the requirements of SB 375. In Bay Area Citizens v. Association of Bay Area Governments, the appeals court rejected petitioner’s argument that the EIR for the Plan should have taken into account reductions in GHGs that will occur under statewide GHG reduction mandates.

ASteelhead Trouts we reported last year, the California Supreme Court in Center for Biological Diversity v. California Department of Fish and Wildlife invalidated the greenhouse gas analysis and mitigation for the fully-protected unarmored stickleback on review of an environmental impact report (“EIR”) prepared for the Newhall Ranch development in northern Los Angeles County. In its ruling, the Supreme Court remanded the case to the lower appeals court to determine two issues left undecided—the project’s impacts on tribal cultural resources and the endangered steelhead trout.

On July 11, 2016, the Second Appellate District finally issued its ruling after remand from the Supreme Court. In unpublished sections of its opinion, the court provided further direction to the trial court and lead agency on the greenhouse gas analysis and species issues and reiterated its earlier ruling—that the EIR’s evaluation of tribal cultural resources and steelhead trout was supported by substantial evidence. In the only published portion of the opinion, the court grappled with a procedural issue that only a CEQA aficionado could love—whether the appeals court itself can retain jurisdiction to supervise directly the agency’s compliance with its ruling. Appeals court jurisdiction in CEQA cases has witnessed some interesting turns in recent years, as the Legislature has added targeted streamlining provisions and original jurisdiction in the court of appeals in some instances. (See, e.g., Pub. Resources Code, §§ 21168.6 [CPUC challenges], 21185 [environmental leadership projects].) The court here, however, found that it did not have the authority to step into the shoes of the trial court.