On May 2, 2017, the Fifth District Court of Appeal vacated its earlier order and writ, and on May 5 it granted Respondents’ request for rehearing in the CEQA litigation entitled Poet, LLC v. State Air Resources Board, et al. (“POET II”) (5th Dist. 2017) ___ Cal.App.5th ___, Case No. F073340. Upon granting various requests for judicial notice of the parties, the Court resubmitted the cause without further briefing on May 24, and issued its modified published opinion (with no change in the result) on May 30, 2017.

The Attorney General’s office has kindly advised that it could discern the following changes were made in the lengthy (nearly-70-page) opinion:

  • On page 3 of the modified opinion, the Court added the word “term”, so that the sentence now reads: “Here, the term “project” includes the ….”
  • On page 26 of the modified opinion, the Court added “under the circumstances of this case,” so that the sentence now reads: “Therefore, we conclude that for the purposes of CEQA the activities associated with the original LCFS regulations, the 2015 LCFS regulations, and the ADF regulations constitute a single project under the circumstances of this case.”
  • The reference to natural gas (on page 61) was omitted.
  • On page 61, the Court substituted the word “tainted” for the word “affected” that was in its earlier April 10 opinion, so that the sentence now reads: “The other provisions would not be affected because they were not tainted by an ongoing CEQA violation”.
  • Part (3) of the Disposition (on page 65) was changed to reference Table 2 of subdivision (c) of section 95484.

Since there is no change from the prior POET II opinion in result or reasoning, readers desiring an analysis of the case can still refer to my post on the first opinion here.