Governor Jerry Brown was recently quoted in a Capitol Alert piece as calling legislative reform of CEQA “the Lord’s work” – hopefully he didn’t mean the quest for the Holy Grail – although he admitted in the same article he hadn’t yet read the latest bills proposing to limit its scope. In the short time since then, SB 317 (the most significant effort at CEQA reform this year) appears to have died in the waning days of this Legislative session. While “hope springs eternal,” meaningful legislative reform of CEQA thus continues to prove elusive.
Virtually since its enactment, CEQA has produced controversy and calls for reform. The 1972 Supreme Court decision in Friends of Mammoth established the “EQA” (as it was then oddly, and briefly, known) as California’s preeminent environmental law, holding that it applied to approvals of private projects, and must be construed to provide “the fullest possible protection to the environment within the reasonable scope of the statutory language.” CEQA’s judicially-established “fair argument” test set a very low hurdle for requiring what have become (over the years) voluminous, expensive, and time-consuming environmental impact reports (“EIRs”), and has resulted in a correspondingly voluminous and complex body of case law – and continuing unsatisfied demands for meaningful legislative reform.
But the Legislature is not the only branch of government capable (in theory at least) of “CEQA reform” – what the courts “giveth,” they may also “taketh away.” Indeed, it appears that a judicial trend toward cutting back on CEQA’s scope in various respects has emerged in many published appellate decisions rendered in recent years, under the leadership of the California Supreme Court. Skeptical CEQA reform advocates should consider the following “baker’s dozen” case examples:
- The Supreme Court has held that CEQA’s exhaustion of administrative remedies requirement broadly applies, extending it (logically, but arguably even beyond the statute’s literal language) by holding it applies to actions challenging a decision that a project is CEQA-exempt. Tomlinson v. County of Alameda (2012) 54 Cal.4th 281.
- The Supreme Court has established “bright line” rules that CEQA’s short statutes of limitations for challenging project approvals (30-35 days) are triggered by a public agency’s filing of notices of its CEQA determination or exemption decision that are minimally-sufficient on their face. Citizens for Sensible Planning v. City of Stockton (2010) 48, Cal.4th 481; Committee for Green Foothills v. Santa Clara County Bd. of Sup’rs. (2010) 48 Cal.4th 32.
- The Court of Appeal recently reaffirmed CEQA’s fundamental boundaries, holding that CEQA only requires analyzing physical impacts on the environment, not economic impacts on government services. City of Hayward v. Board of Trustees of the California State University (2012) 207 Cal.App.4th 446.
- The Court of Appeal recently held that CEQA Guidelines § 15162 is valid, and does not impermissibly broaden the limitation on subsequent environmental review contained in the relevant CEQA statute (Pub. Resources Code, § 21166) by applying it to cases where the initial document was a negative declaration, rather than an EIR. Abatti v. Imperial Irr. Dist. (2012) 205 Cal.App.4th 650.
- Numerous appellate courts have now reaffirmed what I once thought to be an “outlier” position, holding that CEQA doesn’t operate “in reverse”: i.e., its proper scope is to analyze the effects of the proposed project on the existing environment, not the effects of the existing environment on the proposed project or its future occupants. E.g., Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455; South Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal.App.4th 1604. The Supreme Court has declined to review these decisions, which appear to be on solid footing.
- The Court of Appeal recently upheld the use of pre-litigation agreements to suspend the statute of limitations (with all parties,’ including real parties’) consent, in order to facilitate reasonable efforts to settle CEQA claims before expensive lawsuits are filed and pursued on CEQA’s tight timelines. Salmon Protection and Watershed Network v. County of Marin (2012) 205 Cal.App.4th 195.
- Recent appellate decisions have confirmed that even highly-detailed preliminary, exploratory and tentative actions do not ripen into “projects” triggering the need for CEQA review as long as there is no commitment to a definite course of action regarding project approval. E.g., Cedar Fair, L.P. v. City of Santa Clara (2011) 194 Cal.App.4th 1150; City of Santee v. County of San Diego (2010) 186 Cal.App.4th 55.
- A recent court of appeal decision dealing with a Chevron refinery marine terminal lease held CEQA’s environmental “baseline” for reviewing long-term lease renewals properly includes existing conditions and structures, the “impacts” of which therefore need not be analyzed anew (or mitigated) under CEQA even if they were never previously analyzed. Citizens for East Shore Parks v. California State Lands Commission (2012) 202 Cal.App.4th 549.
- A recent appellate decision held an EIR’s deferral of formulation of precise details of CEQA-required mitigation measures is proper when such formulation is impractical, a commitment to mitigate has been made, and feasible options have been discussed. Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884.
- Another recent appellate decision reaffirmed that errors in complying with CEQA procedures will not automatically require a court to void project approvals so long as CEQA’s information gathering and presentation functions are not compromised. Schenck v. County of Sonoma (2011) 198 Cal.App.4th 949.
- A number of appellate decisions in recent years have underscored that ministerial project approvals or actions in various contexts are not subject to CEQA review because CEQA applies only to discretionary project approvals. Sierra Club v. Napa County Board of Supervisors (2012) 205 Cal.App.4th 162 (holding Napa County’s revised lot line adjustment ordinance properly classified lot line adjustment decisions consistent with the Map Act’s exemption as ministerial in nature and exempt from CEQA); Friends of Juana Briones House v. City of Palo Alto (2010) 190 Cal.App.4th 286 (demolition permit ordinance with only fixed, objective standards provided for ministerial residential demolition permit process exempt from CEQA); San Diego Navy Broadway Complex Coalition v. City of San Diego (2010) 185 Cal.App.4th 924 (approval of construction plans for waterfront development project required only ministerial determination whether plans were consistent with earlier-approved redevelopment project, and did not give City meaningful discretion to respond to newly-raised GHG claims).
- Another recent appellate decision held CEQA’s statutes of limitations run from the agency’s initial project approval, and the period to bring suit is not re-opened by subsequent approvals that are simply steps to implement the already-approved project. Van de Kamps Coalition v. Bd. of Trustees of Los Angeles Community College Dist. (2012) 206 Cal.App.4th 1036. The courts of appeal have now consistently held for several years that claims challenging a local agency’s subdivision-related decisions on CEQA grounds are barred when plaintiffs fail to comply with both CEQA’s and the Map Act’s statute of limitations. Torrey Hills Community Coalition v. City of San Diego (2010) 186 Cal.App.4th 429; Friends of Riverside’s Hills v. City of Riverside (2008) 168 Cal.App.4th 743.
Other evidence exists that appellate courts are stepping up more and more to shrink and streamline CEQA, even when the Legislature won’t. The Supreme Court has recently generally emphasized that “common sense” is relevant at all levels of CEQA review, and observed in significant dicta that public interest standing is not “automatic,” but, rather, an exception to the normal beneficial interest standing requirement and subject to public policy limits. Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155. It also recently granted review of a case that effectively eviscerated CEQA’s categorical exemptions, and will decide the all-important question of what standard of judicial review applies to exemptions in the face of an argument that the “unusual circumstances” exception applies. Berkeley Hillside Preservation (Supreme Ct. No. S201116).
As David Letterman used to ask, “Is this anything?” Are the recent court decisions indicative of a meaningful judicial trend? If so, does that trend signify a pendulum swing away from the California courts’ early expansionist interpretations of CEQA, a necessary result of burgeoning and out-of-control CEQA litigation reaching its logical outer limits, or some combination of these or other factors? To be sure, CEQA compliance remains complicated, burdensome, and expensive; CEQA litigation is ubiquitous and still too often misused for non-environmental agendas; and carefully-crafted legislative reform could be helpful in many respects. (See, e.g., my June 7, 2012 post regarding the need for legislative CEQA reform in areas of administrative record/discovery disputes.) Nonetheless, and in the continued absence of meaningful legislative reform, perhaps there is some hope (or solace) for CEQA reform advocates to be found in the Supreme Court’s “common sense” holdings and pronouncements. They seem to have set a tone of judicial retrenchment reflected in much of the recent CEQA case law. As Jerry Brown might observe, the Lord works in mysterious ways.