A new year often brings fresh perspective. With 2016 still in its infancy, it is natural to reflect back on what has been and also to contemplate what is yet to come. The California Supreme Court’s recent CEQA decisions, and its current docket of CEQA cases awaiting decision, provide ample opportunity for both of these basic human impulses.
Looking back at the past and recent years, the Supreme Court’s engagement in tackling and resolving important CEQA issues has been robust; indeed, it has been remarkable. Over the past five years, the high court has issued at least nine (9) major CEQA decisions, including landmark holdings that:
- CEQA does not, as a general rule, operate in reverse to require analysis of existing environmental conditions on a proposed project’s future residents and users; rather, “ordinary CEQA analysis [– subject to specific statutory exceptions –] is concerned with a project’s impact on the environment, rather than with the environment’s impact on a project and its users or residents.” California Building Industry Association v. Bay Area Air Quality Management District (2015) ___ Cal.4th ___, 2015 WL 9166120.
- Analyzing the significance of a project’s greenhouse gas (GHG) emissions in terms of reductions from projected “business as usual” (BAU) emissions, and for consistency with AB 32’s statewide reductions mandate, is a permissible methodology under CEQA, but must be supported by substantial evidence and logical analysis establishing “a quantitative equivalence between the [AB 32] Scoping Plan’s statewide comparison and the EIR’s own project-level comparison[.]” Center for Biological Diversity v. California Department of Fish & Wildlife (2015) 62 Cal.4th 204.
- The “unusual circumstances” exception to otherwise applicable categorical exemptions (CEQA Guidelines § 15300.2) cannot be invoked to defeat a CEQA exemption based on the mere showing that substantial evidence supports a “fair argument” that a project may have a significant environmental impact; rather, a project opponent invoking the exception must also make a factual showing to the lead agency’s satisfaction that “unusual circumstances” (such as unusual size, location, or another project feature that distinguishes it from others in the exempt class) exist and have resulted in the potentially significant impacts. Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086.
- A state agency may not declare mitigation of its projects’ off-site impacts through payment of “fair share” fees to be legally infeasible simply because the Legislature has not appropriated funding specifically earmarked for that purpose. City of San Diego v. Board of Trustees of the California State University (2015) 61 Cal.4th 945.
- CEQA review is not required prior to a local legislative body’s direct adoption of a qualified, citizen-generated initiative petition under the exclusive procedures of the Elections Code (§§ 912, 914) governing such voter-sponsored initiatives. Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029.
- CEQA normally requires a lead agency to assess a project’s potential environmental impacts against an “existing conditions” baseline, and consequently disallows sole reliance on a “future conditions” baseline unless the agency shows “by substantial evidence that an analysis based on existing conditions would tend to be misleading or without informational value to EIR users.” Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439.
- Public Resources Code § 21177(a)’s exhaustion of administrative remedies requirement applies to CEQA actions challenging a lead agency’s determination that a project is exempt, so long as the challenger has the opportunity to present its objections at a public hearing before the project is approved. Tomlinson v. County of Alameda (2012) 54 Cal.4th 281.
- Corporate business competitors asserting economic or commercial (rather than environmental) interests nonetheless have traditional “beneficial interest” standing which is sufficient to seek CEQA relief, and moreover are not subject to any heightened standing hurdles or scrutiny when claiming “public interest standing,” which is an exception to the normal beneficial interest requirement. Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155.
- The filing of a facially-valid Notice of Exemption (NOE) triggers a 35-day statute of limitations (Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481), and the filing of a facially-valid Notice of Determination (NOD) triggers a 30-day statute of limitations for all CEQA challenges to the decision announced in the notice.Committee For Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32.
But the high court’s work is far from finished. Looking forward to the year(s) to come, it has granted review in a number of still-pending cases in which it is expected to decide additional important CEQA issues, including:
- “When a lead agency performs a subsequent environmental review and prepares a subsequent environmental impact report, a subsequent negative declaration, or an addendum, is the agency’s decision reviewed under a substantial evidence standard of review (Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385), or is the agency’s decision subject to a threshold determination whether the modification of the project constitutes a “new project altogether,” as a matter of law (Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288)?” The case in which this extremely important “subsequent review” issue is to be decided – Friends of the College of San Mateo Gardens v. San Mateo County Community College District, Case No. S214061 – was fully briefed in 2014, but has not yet been scheduled for oral argument.
- “Must the environmental impact report for a regional transportation plan include an analysis of the plan’s consistency with the greenhouse gas emission goals reflected in Executive Order No. 5-3-05 to comply with [CEQA] .…?” The issues to be decided – involving the fundamental nature and authority of Executive Orders and CEQA’s rules for “thresholds of significance” – are posed by the case of Cleveland National Forest Foundation v. San Diego Association of Governments, Case No. S223603, which was fully briefed as of late 2015, but has not yet been set for oral argument.
- Numerous “issues concerning the standard and scope of judicial review under [CEQA]” were presented for review and may be decided in Sierra Club v. County of Fresno, Case No. S219783, a pending case fully briefed as of July 2015, but not yet set for oral argument. Although it is not presently known which specific issues the Supreme Court will take up and decide in this case, such issues could include clarification of the standard of review applicable to claims that an EIR contains insufficient information, discussion or analysis on an included (as distinguished from an entirely omitted) topic, and the standard for assessing the adequacy of mitigation measures adopted to reduce (but not eliminate) a project’s significant and unavoidable impacts.
- “(1) Does the Interstate Commerce Commission Termination Act [ICCTA] (49 U.S.C. §§ 10101 et seq.) preempt the application of [CEQA] … to a state agency’s proprietary acts with respect to a state-owned and funded rail line or is CEQA not preempted in such circumstances under the market participant doctrine (see Town of Atherton v. California High Speed Rail Authority (2014) 228 Cal.App.4th 314)? (2) Does the ICCTA preempt a state agency’s voluntary commitments to comply with CEQA as a condition of receiving state funds for a state-owned rail line and/or leasing state-owned property?” The case presenting these federal/state law preemption issues, which was fully briefed as of late 2015, but not yet set for oral argument, is Friends of Eel River v. North Coast Railroad Authority, Case No. S222472.
- In another case involving a CEQA challenge to an EIR and other challenges to a residential/commercial coastal zone development project, the Supreme Court granted review of the following issues: “(1) Did the City’s approval of the project at issue comport with the directives in its general plan to “coordinate with” and “work with” the California Coastal Commission to identify habitats for preservation, restoration, or development prior to project approval? (2) What standard of review should apply to a city’s interpretation of its general plan? (3) Was the city required to identify environmentally sensitive habitat areas – as defined in the California Coastal Act of 1976 … — in the [EIR] for the project?” The case, Banning Ranch Conservancy v. City of Newport Beach, Case No. S227473, is not yet fully briefed.
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As is apparent from its past CEQA decisions and docket of pending CEQA cases, the California Supreme Court has played and continues to play an extremely active role in clarifying and shaping our state’s signature environmental law. The New Year promises to be another interesting one for CEQA practitioners.