Followers of CEQA reform efforts over the past several years will have observed two general trends: (1) Legislative reform has proven difficult, incremental, and marked by political division and dealmaking; and (2) the Supreme Court has “taken up the slack” by aggressively granting review of and resolving numerous major CEQA issues.  In doing so, the high court has brought greater clarity and “common sense” to the jurisprudence defining the parameters and operation of this venerable law – a significant judicial reform effort of which CEQA has been sorely in need.  While much remains that could be done to clarify, streamline and modernize CEQA, the Supreme Court’s judicial reform effort continues with seemingly unabated vigor.

Those seeking empirical support for these assertions need look no further than the Supreme Court’s current docket, which lists five pending CEQA cases in which it granted review between late 2011 and late 2013.  A brief rundown of these cases, and their issues and implications, underscores their significance.

  • California Building Industry Association v. Bay Area Air Quality Management District, Case No. S213478 (review granted November 26, 2013).  The issue to be resolved is fundamental, has far-reaching implications, and goes to the very core of CEQA’s basic purposes, structure and scope – i.e., when, if ever, does CEQA operate “in reverse”?  In other words, is the review mandated by CEQA limited to the already-vast sphere of analysis of a proposed project’s impacts on the existing environment, or does it extend further to require as a routine matter analysis of the existing environment’s impacts on the proposed project and its future occupants and users?  It the Supreme Court adopts the latter interpretation, CEQA compliance and litigation would become astronomically more complex and expensive.
  • Tuolumne Jobs & Small Business Alliance v. Superior Court, Case No. S207173 (review granted February 13, 2013). To provide some background and my own perspective: In light of the vast consumption of time and societal resources required for CEQA review – in a modern world where EIRs consuming years and hundreds of thousand of dollars to prepare routinely trigger litigation consuming additional years and hundreds of thousands of dollars to resolve – common sense demands at the very least that CEQA review not be an idle act.  In other words, any governmental decision which such review is legally required to inform must allow the agency to exercise meaningful discretion to shape the proposed project in light of its potentially adverse environmental consequences as revealed by the CEQA review.  The Tuolumne Jobs & Small Business Alliance case sharpens the focus on issues concerning the nature of local agency discretion and just how “meaningful” it must be to trigger CEQA review.  Specifically, the Supreme Court must decide whether the highly-circumscribed options afforded a City under Elections Code § 9214 when presented with a qualified citizen-generated initiative petition – i.e., adopt without change or promptly place on the ballot for a vote of the people without change – provide the meaningful discretion to shape a project that has been required by prior cases to trigger or justify CEQA review, or, conversely, whether they describe a ministerial process outside CEQA’s reach.  While the issue may at first blush seem narrow, it is not; rather, it has far reaching implications in that it will set a precedent for determining what types of governmental actions are discretionary and thus within the purview of CEQA. (Incidentally, the Fifth District Court of Appeal created a split in appellate authority with its decision in this case, rejecting a contrary Fourth District case that was “squarely on point” and decided in 2004.)
  • City of Hayward v. Board of Trustees of the California State University, Case No. S203939 (review granted October 17, 2012, and held pending disposition of related issue in City of San Diego v. Board of Trustees of the California State University, Case No. S199557).  A number of CEQA cases have discussed the standards governing claims that mitigation measures for locally-approved projects are financially infeasible.  But what about the situation where the entity claiming it is financially infeasible to mitigate for the impacts of a major development project is state-funded?  As the Supreme Court’s docket reveals, these two cases present the issue:  “Does a state agency that may have an obligation to make “fair-share” payments for the mitigation of off-site impacts of a proposed project satisfy its duty to mitigate under [CEQA] by stating that it has sought funding from the legislature to pay for such mitigation and that, if the requested funds are not appropriated, it may proceed with the project on the ground that mitigation is infeasible?”  The issue is of obvious practical importance to both state universities and the cash-strapped local communities in which they are located and which must deal with the off-site environmental impacts of their growth.
  • Berkeley Hillside Preservation v. City of Berkeley, Case No. S201116 (review granted May 23, 2012).  This promises to be another “blockbuster” CEQA case, involving the scope of judicial review of and deference to public agencies’ determinations that projects are categorically exempt under the CEQA Guidelines, when the exemption determination is made in the face of project opponents’ claims that an exception to an exemption applies.  Specifically, the Court must resolve a split of judicial authority and interpret the so-called “unusual circumstances” exception to categorical exemptions, in order to determine whether the mere existence of any kind of substantial evidence supporting a fair argument of a potentially significant environmental impact automatically satisfies the exception and thus precludes reliance on the exemption.  At stake is nothing less than whether categorical exemptions based on the regulations and findings of the Resources Agency will be held to carry any more weight than a Negative Declaration, or, conversely, whether they can be just as easily defeated by an “expert” opinion/fair argument challenge, even where no unusual circumstances exist with respect to the particular project to significantly differentiate it from others in the exempt class.

As can be seen, the Supreme Court continues to take on complex and important CEQA issues, and currently has a full plate.  In so proceeding, it also continues its own important role as the state’s primary governmental engine of CEQA reform.