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
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.
In recent weeks, California appellate courts issued two decisions regarding California Air Resources Board (CARB) programs implemented under AB32, the Global Warming Solutions Act, with mixed results. The first decision upheld the legality of a key element of CARB’s cap-and-trade program, the auction of emission credits. In that case, the Third Appellate District rejected an industry challenge and found that the auctions are within the authority granted to CARB by AB32 and are not an illegal tax. In the second case, the Fifth Appellate District delivered a setback—the second in that court—for CARB’s Low Carbon Fuel Standard (LCFS), finding the agency failed under the California Environmental Quality Act (CEQA) to adequately analyze the potential effects of NOx emissions resulting from the increased use of biofuels mandated by the LCFS. CARB was first ordered by the court to correct this CEQA violation in a 2013 writ of mandate, but the agency failed to do so in its 2015 re-adoption of the LCFS. The court, noting the environmental benefits of this program, however, did not invalidate the LCFS and only froze the required standards at 2017 levels until CARB corrects the CEQA deficiencies. These decisions do little to clarify the muddy waters around how agencies should analyze greenhouse gas emissions under CEQA, as that analysis is inextricably intertwined with the effectiveness of the State’s greenhouse gas regulatory programs.
On, September 12, 2015, the Fifth District Court of Appeal issued its opinion in Citizens for Ceres v. City of Ceres (2016) _Cal.App.5th_. The opinion authorized real-parties-in-interest to recover costs of record preparation, as long as the record was prepared in a manner prescribed by Public Resources Code section 21167.6. The petitioners in this action challenged the EIR for a new shopping center anchored by a Wal-Mart on a variety of grounds, including that the project did not adequately mitigate for urban decay impacts and that the EIR failed to set forth an adequate long-term plan for solid waste disposal. The trial court upheld the EIR on all grounds but rejected real-party-in-interest Wal-Mart’s motion to recover costs associated with preparing the record, based on Public Resources Code section 21167.6 and the principles elucidated in Hayward Area Planning Assn. v. City of Hayward (2005) 128 Cal.App.4th 176.
As discussed in a prior post, Downey Brand recently prevailed on appeal and successfully defended one of its clients against a challenge to its proposed commercial development project in Modesto. The Fifth District Court of Appeal originally issued an unpublished opinion in Naraghi Lakes Neighborhood Preservation Association v. City of Modesto, but on July 1 ordered publication of a portion of the opinion addressing a key argument concerning general plan consistency. As such, local agencies can now cite this decision as legal precedent confirming the deference owed by the courts to cities and counties interpreting their own general plans.
The City of Modesto and Downey Brand client Berberian Holdings, L.P. (“Berberian”), have prevailed in a legal challenge to a commercial development project proposed by Berberian. On June 7, the Fifth District Court of Appeal issued a 45-page unpublished opinion in the action (Naraghi Lakes Neighborhood Preservation Association v. City of Modesto), affirming
Medical marijuana advocates in Kern County recently obtained victories in the Fifth Appellate District Court of Appeal on two fronts, invalidating one ordinance that would ban dispensaries and another that would significantly restrict their operations.