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Category Archives: CEQA

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Categorical Exemptions Under CEQA — California Supreme Court Grants Review of Another Case Involving the Unusual Circumstances Exception

Posted in CEQA

In a recent case decided by the Third District Court of Appeal the court upheld the use of a CEQA exemption for a proposed rodeo at a county fairground despite claims it would pollute  a nearby creek.   Citizens for Environmental Responsibility v. State of California ex rel. – 14th Dist. Agricultural Association (No. C070836).     The… Continue Reading

Greenhouse Gas and Climate Change Impacts: CEQA Practice Tips

Posted in CEQA, Climate Change

The analysis of climate change impacts under CEQA has rapidly evolved over the last several years. For this reason and others, nearly every challenge to an environmental impact report today features an attack on the EIR’s analysis of greenhouse gas emissions. Fortunately, amendments to the CEQA Guidelines and recent court decisions have provided environmental professionals… Continue Reading

Highway 101 EIR Felled by Redwoods

Posted in CEQA

Caltrans’s analysis of impacts to redwoods from  realignment of a one-mile stretch of Highway 101 has been rejected.  The court of appeal ruled that the project EIR both failed to identify any significance threshold for impacts to redwoods and impermissibly labeled mitigation measures as project features.  Lotus v. Department of Transportation, No. A137315 (First Dist.,… Continue Reading

Challenge To Annexation Dismissed Due To Failure To Comply With Required Procedures

Posted in CEQA, Land Use, Public Agencies

CEQA and other claims challenging a completed annexation were dismissed because they had not been brought in a reverse validation proceeding.  Protect Agricultural Land v. Stanislaus County Local Agency Formation Commission (No. F066544, 1/28/14) The Stanislaus County Local Agency Formation Commission approved annexation of land into the City of Ceres, relying on an EIR the… Continue Reading

CEQA Year In Review 2013

Posted in CEQA

A Summary of Published Appellate Opinions Under CEQA By Steve Kostka, Barbara Schussman, Julie Jones, Marc Bruner & Christopher Tom   The CEQA cases published in 2013 continued to reflect a recognition that CEQA does not require perfection, but rather a reasonable effort to provide useful environmental information — a trend that continued from the… Continue Reading

Existing Contamination On A Development Site Does Not Necessarily Trigger Preparation Of An EIR

Posted in CEQA, Environmental Regulation

Proposals to redevelop infill sites can often present difficult issues relating to how the potential effects of preexisting contamination should be evaluated under CEQA.  In a recently published opinion, the court in Parker Shattuck Neighbors v Berkeley made it clear that, in the absence of real evidence a significant environmental impact might occur,  the fact… Continue Reading

High Hurdle for EIR Recirculation Claims Set by Appellate Court

Posted in CEQA

In a recently published decision,  a California court of appeal rejected a challenge to an EIR alleging the agency was required to recirculate the EIR when a new alternative was proposed after the draft EIR had already been circulated. South County Citizens for Smart Growth v. County of Nevada, 2013 WL 5936664 (Cal. App. 3… Continue Reading

Comment Periods Open on New Fracking Regulations and Scope of Statewide EIR

Posted in CEQA, Environmental Regulation

In the face of mounting public pressure to address the potential perils of hydraulic fracturing, California has embarked upon a multi-faceted program to strengthen its oil and gas regulations, perform comprehensive environmental studies, and increase public disclosure.  On November 15, 2013, the Department of Conservation published two notices seeking comments on steps it is taking to… Continue Reading

Court Rejects Claim That New General Plan Housing Element Requires New EIR

Posted in CEQA, Planning and Zoning

Affordable housing advocates have lost a claim that Napa’s new General Plan Housing Element required a new environmental impact report.  Latinos Unidos de Napa v. City of Napa, No. A134959 (1st Dist., Oct. 10, 2013, publication ordered Nov. 5, 2013).  The court upheld the city’s decision that its 2009 Housing Element was not a new… Continue Reading

EPA Publishes Draft Scientific Report To Support Significant Expansion of Clean Water Act Jurisdiction

Posted in CEQA, Environmental Regulation, NEPA, Wetlands

On September 17, 2013, the Environmental Protection Agency announced the release of a draft scientific report that is widely seen as a prelude to upcoming regulations that would significantly expand federal permitting jurisdiction under the Clean Water Act. See our update for more information about the draft report, which is titled “Connectivity of Streams and… Continue Reading

Ninth Circuit Moves Low Carbon Fuel Regulations Closer to Validation

Posted in CEQA, Environmental Regulation, NEPA

Many CEQA and NEPA analyses of greenhouse gas impacts assume implementation of the Low Carbon Fuel Standard adopted by the California Air Resources Board. In a boost to the credibility of these analyses, the Ninth Circuit has dissolved a pending injunction and rejected multiple challenges to the Low Carbon Fuel Standard. Rocky Mountain Farmers Union… Continue Reading

Senate Bill 743: Legislature Sends CEQA Amendments to Governor

Posted in CEQA

Following a week of intense negotiations, the Legislature has sent Governor Brown a set of  CEQA amendments.  Senate Bill 743 replaces – at least for now — Senate Bill 731, which had become an unwieldy mass of 15 separate CEQA revisions.  (See our April 26 post CEQA Modernization?  Not really.)  Although it adds detailed provisions… Continue Reading

County Can Establish Winery Uses By Right Despite Environmental Impacts

Posted in CEQA

San Diego County’s decision to permit visitor-serving wineries by right has survived CEQA and general plan challenges.  San Diego Citizenry Group v. County of San Diego, 219 Cal. App. 4th 1 (2013).  Deferring to the county’s decision to encourage such wineries – despite their unavoidable environmental impacts – by eliminating use permit requirements, the court… Continue Reading

Faulty Greenhouse Gas Analysis Sinks EIR

Posted in CEQA, Climate Change

An environmental impact report must not only identify a proper significance threshold for a project’s greenhouse gas (GHG) emissions; it must then correctly apply that threshold.  The EIR for a Wal-Mart Supercenter failed this test in Friends of Oroville v. City of Oroville, No. 070448 (3rd Dist., Aug. 19, 2013).  Wal-Mart proposed to replace an… Continue Reading

No CEQA Review Required For Adoption of CEQA Thresholds of Significance

Posted in CEQA

A court of appeal today rejected a CEQA challenge to an air pollution control district’s published thresholds of significance for air pollution impacts.  California Building Industry Association v Bay Area Air Quality Management District, No. 135335 (First District, July 13, 2013).   The thresholds, contained in the District’s “CEQA Air Quality Guidelines,” were first adopted… Continue Reading

Use Of Future Baseline In CEQA Analysis Approved By California Supreme Court

Posted in CEQA

The California Supreme Court has both resolved a split in the appellate courts and forged new law on the baselines agencies may use to assess projects’ environmental effects under CEQA.  Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, Case No. S202828 (Cal. Supreme Court, August 5, 2013). In an unusual 3-3-1 decision, the… Continue Reading

Offsite Conservation Easements Are Feasible Mitigation For Loss Of Agricultural Resources According to Appellate Court

Posted in CEQA, Land Use

The First District Court of Appeal has ruled an EIR inadequate for failure to explore fully the use of conservation easements to mitigate impacts to agricultural resources. Masonite Corporation v. County of Mendocino, No. A134896 (First Dist., July 25, 2013). Mendocino County certified an EIR for a proposed sand and gravel quarry that would have… Continue Reading

Specific Limitations Period In Government Code Prevails Over Statute of Limitations In CEQA

Posted in CEQA

A 30-day limitations period for a challenge to a project that is exempted from CEQA by Government Code section 65457 applies rather than the 35-day limitations period that ordinarily applies after a notice of exemption is filed, according to the court in May v. City of Milpitas, No. H038338 (Sixth District, July 16, 2013). The statutes of… Continue Reading

Pre-Approval Disclosures Between Agency and Applicant Waive Privileges In CEQA Cases.

Posted in CEQA

The Fifth Appellate District has issued another in a series of decisions regarding administrative records in CEQA cases.  The court held that the “common interest doctrine” does not protect otherwise privileged communications shared by a developer and an agency prior to approval of a project because the two cannot be considered to be advancing any… Continue Reading

Large Solar Energy Project Survives Williamson Act And CEQA Challenge

Posted in CEQA, Land Use

The Sixth District Court of Appeal has given a boost to utility-scale solar projects by rejecting the types of Williamson Act and CEQA challenges that are often brought against those projects.  Save Panoche Valley v. San Benito County, No. HO37599 (6th Dist. June 25, 2013). The case concerns the Panoche Valley Solar Farm, a solar photovoltaic facility in… Continue Reading

Judicial Review of Environmental Impact Reports: Is There Really A Need for CEQA Reform?

Posted in CEQA, Climate Change, Water Supply

Every few years, with El Nino-like regularity, a wave of interest in CEQA reform sweeps through the business community, accompanied by pleas to the legislature to overhaul the statute.  In the end, few substantive changes are made.  This year is no exception. (See June 14th post). Many of the recurring concerns involve the unpredictability of… Continue Reading