As a brief follow up to my earlier posts of April 26, May 4, and May 12, 2016, it appears that supplemental and amicus briefing has ended and that the matter has now been submitted for decision in the important Supreme Court “subsequent review” case, Friends of the College of San Mateo Gardens v. San Mateo Community College District, Case No. S214061.
The supplemental briefing requested by the Court per its May 11, 2016 order (described in my most recent, May 12 post hyperlinked above) was completed as of June 23, 2016. Additional supplemental and reply briefs were filed by the parties, and a supplemental brief was also filed by the California Resources Agency, all addressing the issues on which the Court requested supplemental briefing.
In an unexpected wrinkle, on June 16, in the midst of supplemental briefing and without further amici briefing having been invited by the Court, amici curiae Communities for a Better Environment, Environmental Defense Center, and Southern California District Council of Laborers filed an application for permission to file an amicus curiae brief in support of the position of Plaintiffs and Respondent Friends of the College of San Mateo Gardens (“Friends”).
Surprisingly, the Supreme Court granted that late and uninvited amicus application and filed the additional amicus brief on June 22, stating in its order that any party could file an answer within 15 days. Upon the filing of the last (invited) supplemental reply briefs by the parties on June 23, however, the Court entered “cause submitted” on its docket. On July 8, 2016, both parties – the College District and Friends – filed “answer” briefs to the amicus brief, with Friends taking the opportunity to file yet another brief even though the belated amicus brief was entirely in support of its position.
Hopefully, the somewhat strange twists and turns that took place after oral argument in this case – i.e., the Court’s vacating its submission of the matter for further briefing, allowing late and uninvited amicus briefing, etc. – are now over. What can be said for now is that briefing is apparently over and the case is apparently submitted, in which case a decision can be expected by either September 21 (based on a June 23 submission date), or October 6, 2016 (if the Submission date were revised to July 8).
In any event, CEQA practitioners look forward to what promises to be a very significant decision potentially clarifying (1) whether there exists a threshold “new project” test (and, if so, whether it presents a question of fact for the agency or law for the court), and (2) the operation of CEQA’s subsequent review rules and applicable standards of review in the context where the original CEQA document is a Negative Declaration rather than an EIR.