On December 11, 2019, the California Supreme Court granted review of the Third District’s decision in County of Butte v. Department of Water Resources, dismissing a CEQA challenge to DWR’s relicensing application to the Federal Energy Regulatory Commission (FERC) for the Oroville Dam on the basis that the claim was preempted by federal law. The Court of Appeal held the Federal Power Act (FPA) exclusively occupies the field of dam licensing and preempts state regulation, and accordingly found that it had no jurisdiction to consider the case.
California Supreme Court Holds Medical Marijuana Zoning Ordinance is a Project Subject to CEQA
Every CEQA analysis begins with the threshold question of whether the activity is a “project” as defined by Public Resources Code section 21065 and 21080. In Union of Medical Marijuana Patients, Inc. v. City of San Diego, the California Supreme Court held that regardless of the nature of a project, CEQA applies if it
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 standard of review, the Court found that the Project EIR is inadequate as a matter of law because the EIR did not make a reasonable effort to connect the Project’s air quality impacts to specific health consequences (or explain why it is not feasible to do so). The Court also upheld the lead agency County of Fresno’s discretion to substitute equally effective or more superior future mitigation measures and adopt mitigation measures that do not reduce the Project’s significant and unavoidable impacts to a less-than-significant level. This decision poses significant hurdles for project proponents going forward with new, heightened requirements for EIR analysis of environmental and health impacts and a more scrutinizing, independent legal standard of review for challenges to the adequacy of an EIR.
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 of review for the adequacy of an EIR’s discussion of required CEQA topics and the level of analysis needed to identify a project’s effect on human health.
California Supreme Court Allows Referendum Vote That Would Make Zoning Ordinance Inconsistent with General Plan for “Reasonable Time”
In City of Morgan Hill v. Bushey (2018) 5 Cal.5th 1068, the California Supreme Court held that a local referendum challenging a zoning ordinance amendment in the City of Morgan Hill (a general law city) was valid even where the referendum, if adopted by the local electorate, would be inconsistent with the general plan, so
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
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.
Banning Ranch Conservancy v. City of Newport Beach
On March 30, 2017, in the first of at least three CEQA rulings expected this year, the California Supreme Court issued its long-awaited decision in Banning Ranch Conservancy v. City of Newport Beach. In a unanimous opinion authored by Justice Carol Corrigan, the Court invalidated an EIR for the coastal development at Banning Ranch approved by the City of Newport Beach. Despite the fact that the EIR addressed in detail the project’s physical impacts on wetlands and sensitive habitats, the Court nevertheless held that it failed to adequately disclose and consider the controversy surrounding the potential presence of Environmentally Sensitive Habitat Areas (“ESHA”) under the Coastal Act. This decision falls within a growing line of cases mandating inclusion of non-CEQA regulatory requirements within the confines of the CEQA environmental review process, and in a manner that places ever greater burdens on lead agencies and EIR preparers.
CEQA Implications of California Supreme Court Decision Finding Public Officials’ and Employees’ Personal Accounts Do Not Escape Reach of Public Records Act
On March 2, 2017, the California Supreme Court ruled in City of San Jose v. Superior Court that where a public employee uses a personal email account or texts to communicate about the conduct of public business, those writings may be subject to disclosure under the California Public Records Act (“PRA”). While resolving one long-debated question in California law, this decision also raised myriad new issues, including issues that are specifically relevant to litigation under the California Environmental Quality Act (“CEQA”).
California Supreme Court Grants Review in Medical Marijuana CEQA Case
On January 11, the California Supreme Court granted review of the Fourth Appellate District’s decision in Union of Medical Marijuana Patients, Inc. v. City of San Diego (2016) 4 Cal.App.5th 103. The two issues to be decided by the Court are as follows:
- Is the enactment of a zoning ordinance categorically a “project” within the meaning of CEQA?
- Is the enactment of a zoning ordinance allowing the operation of medical marijuana cooperatives in certain areas the type of activity that may cause a reasonably foreseeable indirect physical change to the environment?