Tie vote that resulted in upholding permit approval was subject to challenge under CEQA

The court of appeal rejected a claim that a tie vote of the air quality management district’s hearing board resulted in “no action” and hence was not subject to judicial challenge. Grist Creek Aggregates. LLC v. Mendocino County Air Quality Management District (No. A149861, June 14, 2017).

The Mendocino County Air Quality Management District approved a permit for Grist Creek Aggregates to construct a heating and blending unit for production of rubberized asphalt. Plaintiff appealed issuance of the permit to the District’s Hearing Board. After two hearings, the four members of the Hearing Board who participated in the appeal split evenly on their vote. The notice of the tie vote stated that the Hearing Board “was unable to make a decision due to a 2-2 tie vote. The Hearing Board will not hold any further hearings on the appeal.”

Plaintiff sought a writ of administrative mandate under Code of Civil Procedure section 1094.5 contending that the District and Hearing Board violated CEQA by approving issuance of the permit without having conducted environmental review. The Hearing Board argued that the 2-2 vote resulted in no action, and hence there was no “final administrative order or decision” subject to judicial review.

The appellate court disagreed. While acknowledging that tie votes by administrative agencies mean different things in different contexts, the court concluded that in in the statutory and procedural context presented, the tie vote gave rise to a claim for abuse of discretion by the Hearing Board. The effect of the Hearing Board’s vote was to deny plaintiff’s appeal, thereby leaving approval of the permit in place. Thus, the Hearing Board’s failure to act was itself a “decision” not to revoke the permit. The court could review this decision for a prejudicial abuse of discretion under Section 1094.5. While it was true, the court said, that lack of any factual findings by the Hearing Board would make such review more difficult, the court had no trouble concluding that the tie vote did not mean the decision was beyond judicial review.

An Attorney Fee Award Is Not Available To A Project Proponent That Successfully Defends A Challenge To Project Approvals Unless The Lawsuit Was Detrimental To The Public Interest.

A project sponsor can successfully defend an action brought to challenge a permit for its project, and satisfy the standards in Code of Civil Procedure section 1021.5 for an award of attorneys’ fees, but still have its fee claim rejected, if the court concludes the aim of the lawsuit was to protect, rather than curtail, important public rights, according to the decision in Save Our Heritage Organisation v. City of San Diego, 11 Cal.App.5th 154 (4th Dist. Div. 1, 2017).

Background.

The City of San Diego approved a site development permit for a revitalization project in Balboa Park and Save Our Heritage Organisation filed suit to challenge the permit. The superior court ruled the permit was invalid, and the city did not appeal. The project sponsor, Plaza de Panama Committee, did appeal however, and succeed in having the superior court judgment reversed. After the case was sent back to the superior court, the Committee requested an award of attorney fees against Save Our Heritage for its time spent on the appeal and in bringing the motion for fees. The superior court denied the fee motion and the Committee again appealed.

A Project Proponent May Be Entitled to a Fee Award If It Successfully Defends a Permit Challenge and Satisfies the Statutory Requirements for an Award.

Code of Civil Procedure section 1021.5 codifies the so-called private attorney general doctrine, which seeks to promote lawsuits that vindicate public rights but that might not be otherwise be brought because of the cost of litigation. On appeal, Save Our Heritage asserted that fees may never be awarded to a project sponsor that successfully defends a challenge to its project, because such an award would have a chilling effect on litigation brought to protect the public interest. The court rejected this argument. The statute allows a court to award attorney fees to “a successful party,” and does not draw a distinction between prevailing plaintiffs and prevailing defendants. Accordingly, the court held that any successful party in litigation involving public rights that otherwise satisfies the statute’s requirements may claim a fee award, not just the party that filed suit.

The Committee Satisfied the Three-Part Test for Obtaining an Attorney Fee Award Under Section 1021.5.

A party seeking a fee award under the statute must show that: (1) the litigation resulted in enforcement of an important right that affects the public interest; (2) a significant benefit was conferred on the public or a large class of persons; and (3) an award would be appropriate given the need for private enforcement and the financial burden of enforcement. Save Our Heritage did not dispute the Committee’s showing that it had met this three-part test for obtaining a fee award.

Fees Could Not Be Awarded Against Save Our Heritage Because It Did Nothing to Compromise Public Rights.

The main issue before the court was whether, under an exception recognized by the California Supreme Court, Save Our Heritage was the “type of party upon whom private attorney general fees were intended to be imposed.” Under this exception, “a section 1021.5 fee award may not be imposed on a litigant who did nothing to adversely affect the public interest.” A party adversely affects the public interest when it seeks to curtail or compromise important public rights or seeks to exonerate itself from the violation of such rights. The court held that the suit brought by Save Our Heritage did not adversely affect the public interest, but rather sought to correct what it believed to be significant violations of environmental, historic preservation, and land use laws by the city. Although the suit was unsuccessful, it involved the type of public interest claims section 1021.5 was enacted to encourage and was not detrimental to the public interest. A fee award against Save Our Heritage would, therefore, not be appropriate.

Court of Appeal Rejects CEQA Piecemealing Challenge to County’s “Zoning Modernization” Ordinances

The court in Aptos Council v. County of Santa Cruz  (6th District, No. H042976, April 25, 2017) rejected a lawsuit claiming that three pro-development zoning ordinances the county adopted constituted a single project that that should have been reviewed together in an environmental impact report. The court of appeal found that the zoning ordinances could be implemented separately and operated independently, and were not a reasonably foreseeable “consequence” of one another. The ordinances therefore did not constitute a single project and completion of separate environmental assessments did not amount to improper piecemeal CEQA review.

Background.

The three zoning ordinances related to minor zoning exceptions, exceptions from sign standards, and height, density and parking requirements for hotels. The county adopted the ordinances as part of a broader effort to reform its land use regulations.

The zoning exception ordinance authorized administrative approval of “minor exceptions” to zoning standards, such as a 5% height increase. The county found no significant impacts and adopted a negative declaration.

The sign ordinance allowed administrative approval of sign exceptions with public notice. The county found the ordinance qualified for various CEQA exemptions.

Finally, the hotel ordinance removed a requirement that hotels have 1,100 square feet of developable area per room, removed a three-story height limit, and reduced required parking from 1.1 spaces per room to 1.0 space per room. The county adopted a negative declaration.

Aptos Council, a community group, filed suit to challenge the county’s approval of the ordinances. It asserted that the negative declaration for the minor exceptions ordinance was invalid and the sign ordinance was not exempt. It also claimed that the county improperly engaged in piecemeal CEQA review of the three ordinances and that environmental review of the hotel ordinance should have considered the impacts of potential future hotel projects. The trial court rejected these claims and denied the petition.

On appeal, Aptos Council dropped its CEQA challenges to the minor exceptions ordinance and the sign ordinance. The court’s analysis therefore focused on two issues: (1) whether the three ordinances taken together constituted a single project and the county engaged in improper piecemeal environmental review by evaluating them separately and (2) whether the county erred by adopting a negative declaration for the hotel ordinance rather than preparing an EIR.

Pro-Development Zoning Ordinances that Can Be Separately Implemented and Operated Independently, and That Are Not a Reasonably Foreseeable Consequence of One Another, Do Not Constitute a Single Project for Purposes of CEQA.

On the issue of piecemealing, the court rejected Aptos Council’s claim that the three ordinances, adopted as part of a county-wide land use reform effort, constituted a single project and should have been reviewed in a single environmental document. As one court of appeal recently ruled, no improper piecemealing occurs when “projects have different proponents, serve different purposes, or can be implemented independently.” On the other hand, under the long-standing rule adopted by the California Supreme Court, an EIR must include an analysis of the environmental effects of a future action if, at a minimum, the future action is “a reasonably foreseeable consequence of the initial project” being considered for approval.

The court of appeal emphasized that whether different proposed activities must be treated as a single project that must be reviewed in a single environmental document depends on whether a causal relationship among them can be shown– that one or more of the proposed activities is a “reasonably foreseeable consequence” of another proposed activity. The county’s decision to change certain zoning regulations—such as changing the number of parking spaces per hotel room—was not a reasonably foreseeable consequence of other regulatory changes such as authorizing administrative approval of minor zoning exceptions. Instead, the court found that the “regulatory reforms operate independently of each other and can be implemented separately.”

Significantly, the court also rejected Aptos Council’s claim that regulatory reform to update county zoning ordinances constituted a single purpose. Although a group of reforms could constitute a single project in some cases, here the court found that “modernizing the County Code is vague” and “was not the type of tangible ‘objective’ that had been found to be the basis of a CEQA project.”

Evidence that the Purpose of an Ordinance Was to Promote Growth Was Insufficient to Show New Development Was Reasonably Foreseeable

The court rejected the contention that an EIR was required for the hotel ordinance because its stated purpose—to facilitate growth—made future development which would have adverse environmental impacts “reasonably foreseeable.” Aptos Council offered arguments the ordinance would lead to new development, but did not identify any evidence that the ordinance might actually induce growth or that there were any hotel projects on the horizon. The court found the evidence in the record showed that no hotel developments had been proposed, only a handful of parcels were available for hotels, and the owners of the two most prominent undeveloped parcels did not currently plan to sell or develop the land. While there was evidence that the county was seeking to increase development, including a planning department letter indicating that regulations were too restrictive, that did not make hotel development “reasonably foreseeable;” it showed only the county’s “hope” for growth. Finally the court explained that it was not possible to forecast the specific environmental impacts that might result from unknown future development. At this point in time “environmental review of potential future developments would be an impossible task, because it is unclear what form future developments will take.”

Court Finds CARB’s New Analysis of Biodiesel Low Carbon Fuel Regulations Still Doesn’t Comply With CEQA But Leaves Current Regulations In Place Pending Compliance

In 2013, the fifth district court of appeal ruled that the California Air Resources Board violated CEQA when it adopted its 2009 Low Carbon Fuel Standard regulations, and the court directed issuance of a writ of mandate requiring that CARB take corrective action.  The court allowed the LCFS regulations to remain in effect while CARB completed a new CEQA analysis, concluding that leaving the regulations in place would provide more protection for the environment than suspending their operation.   (See our post analyzing the court’s 2013 decision here.)  CARB then completed a further CEQA analysis and adopted revised regulations.  Now, the same court has held that the CARB’s new analysis failed to comply with CEQA or its prior decision.   POET, LLC v. State Air Resources Board, 5th Dist. No. F073340 (May 30, 2017).  This time, the court provided specific suggestions for further CEQA review, but it again allowed the revised regulations to remain in place while CARB takes further action to comply.

The Challenge to CARB’s Revised CEQA Review

The challenger, the largest U.S. ethanol producer, again contested CARB’s analysis of the environmental effects of the biodiesel portion of CARB’s LCFS regulations. Biodiesel combustion emits reduced greenhouse gases compared to other fuels, but increases NOx emissions, which have local and regional air quality impacts.  The challenge attacked the Board’s decisions to: 1) limit its CEQA analysis to the impact of its new biodiesel regulations rather than including the effects of its original 2009 regulations; and 2) use 2014 statewide biodiesel emissions as the baseline for CEQA analysis.

The Board Did Not Comply with the Writ of Mandate or CEQA

First, the court of appeal held that CARB had not complied with the writ of mandate because it still had not analyzed the environmental impacts of its original biodiesel regulations, adopted in 2009.  Instead, the CARB analyzed only the impacts of the new regulations it adopted in 2015, and compared biodiesel use under those regulations to statewide biodiesel use in 2014. The court held that the original 2009 regulations and its impacts were part of the “project” CARB was required to analyze.

Because the CEQA analysis incorrectly characterized the project to be analyzed as its 2015 regulations, the court found CARB also erred in using 2014 as its baseline year for gauging changes in NOx emissions from biodiesel. The court explained: “When this court decided to allow the original LCFS regulations to remain operative pending ARB’s compliance with CEQA, we did not intend to deprive the public or decision makers of information about increased NOx emissions caused by the original LCFS regulations during that compliance period. A proper baseline would identify the conditions that existed before any impacts of the original LCFS regulations began to accrue and, thus, would provide a solid foundation for identifying those impacts.”

Existing Regulations Stay In Place Pending CEQA Compliance

To decide whether the 2015 diesel LCFS regulations should be suspended until the CARB complied with CEQA, the court focused on CEQA’s remedies provision, Public Resources Code section 21168.9(a)(2), and identified two questions. The first was whether keeping the 2015 regulations in effect “will prejudice the consideration or implementation of particular mitigation measures or alternatives to the project.” Despite CARB’s acknowledged “bureaucratic momentum” in favor of its LCFS biodiesel regulations, the court concluded that once it reconsidered NOx impacts and determined whether they were significant, CARB would be able to consider any necessary mitigation measures and alternatives. Second, the court asked whether suspension of the LCFS regulations addressing diesel fuel and its substitutes “could result” in an adverse change to the physical environment. The court concluded that suspending the regulations would result in adverse environmental impacts from increased emissions of greenhouse gases, and that this impact outweighed the potential reduction in NOx emissions that would result from suspension.

Next, while acknowledging this was not a factor identified in the statute, the court considered whether CARB’s bad faith should affect the relief granted. The court concluded that CARB had acted in bad faith in its CEQA review of the LCFS regulations on diesel fuel and its substitutes, but that CEQA’s goal of protecting the environment “should not be compromised to punish agency bad faith.” Accordingly, the court ordered that the LCFS regulations governing diesel fuel and its substitutes be frozen in place as of 2017, pending the CARB’s compliance with CEQA.

Finally, CARB requested that the court endorse a 2010 baseline for the further CEQA analysis required by the court’s decision. The court declined, noting that the analysis of its first LCFS regulations began in or before 2009; that regulated entities might have begun modifying their behavior by in anticipation of the regulations; and that the hypothetical use of a 2010 baseline on remand was not a question properly before the court.

The court’s decision represents a straightforward application of CEQA principles governing the scope of a “project” and the determination of baseline conditions. Because of the impacts at stake ‑ climate change vs. local and regional air quality ‑ the opinion provides an unusually careful analysis of remedies for a CEQA violation, but concludes that the certainty of a greenhouse gas impact resulting from suspension of the LCFS regulations outweighs the potential for localized air quality impacts that may occur pending CARB’s CEQA compliance. Accordingly, the case can be seen as part of the judicial trend affording heightened status to climate change impacts under CEQA.

A Project Is Not Discretionary If the Agency Lacks Authority to Require Mitigation

In Sierra Club v. County of Sonoma, (A147340, May 22, 2017) the First District Court of Appeal affirmed that a decision to issue a permit will trigger the duty to comply with CEQA only when the agency has the ability and authority to mitigate the project’s environmental impacts to some degree.

The Agricultural Commissioner of Sonoma County issued an erosion-control permit that allowed the applicants to establish a vineyard on former rangeland under the county’s vineyard and orchard development ordinance. The commissioner reviewed the application and property for conformance with a lengthy list of standards set out in the ordinance and used a form checklist to indicate whether applicable standards were met. The commissioner determined issuance of the permit was ministerial and therefore exempt from CEQA.

CEQA Only Applies When the Agency Has Discretion to Mitigate a Project’s Environmental Impacts to a Meaningful Degree

Environmental groups challenged the commissioner’s determination, alleging the permit approval was discretionary because of the broad and vague substantive standards of the ordinance. Those standards provide guidance on proper grading, drainage improvements, and vineyard and orchard site development. The environmental groups argued the ordinance gave the commissioner broad discretion both to interpret and apply those standards and to require measures to mitigate environmental impacts that might occur.

The trial court upheld the commissioner’s decision and the court of appeal affirmed. The court’s opinion focuses on the functional distinction between discretionary projects which are subject to CEQA, and ministerial activities which are exempt: whether applicable permitting standards give the agency the discretion to deny a permit or impose mitigation measures based on the project’s environmental impacts, or instead require the agency to approve the project if it is found to comply with permitting standards, whether or not it might adversely affect the environment.

The court of appeal first acknowledged that some provisions of the ordinance required that the commissioner exercise discretion when applying them to a proposed project. It explained, however, that the discretion-conferring provisions of the ordinance would only be relevant to the analysis if they actually applied to the project. Here, the court held that only three provisions of the ordinance that could be interpreted as involving a discretionary determination applied to the project. But none of those provisions gave the commissioner the authority to exercise judgment or deliberation in deciding whether to approve the application or to mitigate environmental impacts in a meaningful way.

The first provision required either a 50-foot setback from wetlands or a setback as recommended by a wetlands biologist. The court determined that this provision conferred no meaningful discretion − either the project would have a 50-foot setback or a setback as recommended by a wetlands biologist, or it wouldn’t. The second provision required diverting storm water to the nearest practicable disposal location and the third required the applicant to incorporate natural drainage features whenever possible. The court ruled that the environmental groups had failed to demonstrate that the commissioner had discretion under either provision, and also failed to show that the ordinance gave the commissioner authority “to mitigate potential environmental impacts to any meaningful degree.”

Voluntary Mitigation Measures Do Not Make an Action Discretionary

The environmental groups also argued that issuance of the permit was discretionary because the commissioner requested additional mitigation measures and clarifications and corrections to the application before granting the permit. The court disagreed and explained that an action does not become discretionary simply because an agency makes such requests and an applicant voluntarily agrees to them. In this situation, the commissioner had no authority under the ordinance to require mitigation measures as a condition of approval and did not do so. Instead, the applicants voluntarily adopted further mitigation measures and made corrections and clarifications to their application.

The Takeaway Message

The court’s decision reaffirms that an agency decision to approve a project will be treated as a discretionary action that is subject to CEQA only when the provisions of governing law that are claimed to provide discretionary authority over a proposed project directly apply to the project and give the decision-maker the authority to impose measures that will mitigate environmental impacts in a meaningful way.

 

Appellate court upholds approval of master-planned community against multiple CEQA challenges

The court of appeal upheld the County of Riverside’s decision to approve development of a master-planned community, rejecting claims that the County violated CEQA by (1) filing an inadequate notice of determination; (2) failing to recirculate the final EIR after the project was modified; and (3) failing to consider and adopt feasible air quality mitigation measures.  Residents Against Specific Plan 380 v. County of Riverside, No. E063292 (4th Dist., March 15, 2017).

The project proposed the development of residential, mixed-use, commercial, and open space components on 200 acres of land. The EIR, determined that the project would result in significant air quality and noise impacts. The final EIR responded to comments made by the South Coast Air Quality Management District (SCAQMD) and the City of Temecula and explained the County’s rationale for declining to adopt suggested mitigation measures.

San Bernardino Riverside Interstate 10 west highway sign with sunrise sky.

The Notice of Determination Was Adequate   

Plaintiff contended NOD was inadequate because it described the project as proposed, and failed to reflect changes to the project approved by the Board of Supervisors. The court noted the errors, but found they did not justify unwinding the approval because the notice substantially complied with the informational requirements of CEQA, and the project description was close enough to the project as approved that it “provided the public with the information it needed to weigh the environmental consequences of the County’s determination, seek additional information if necessary, and intelligently decide whether to bring a legal challenge to the approval[.]”

Recirculation of the EIR Was Not Necessary

 The court also dismissed plaintiff’s argument that the County was required to recirculate the final EIR after changes were made to the project. The court addressed the project changes and observed that the differences between the plan described in the final EIR and the project as approved had to do with details of the allocation and arrangement of uses within the project site, not the permitted uses themselves or overall extent or density of the proposed development. It noted that “[t]he footprint of the project remains the same…the project as approved permits the same amount of retail development in the same planning areas, the same amount of commercial office development, and the same number of residential units as the version of the plan analyzed in the final EIR.”  The court found that concerns raised by the plaintiff regarding the project changes were adequately addressed by the County’s environmental consultant, which provided the County with an adequate factual basis for concluding the changes did not result in new significant impacts requiring recirculation.

The EIR Adequately Considered Agency Suggestions for Mitigating Air Quality Impacts

The court also rejected plaintiff’s contention that the County failed to adequately respond to SCAQMD’s and the City of Temecula’s comments regarding air quality impacts.  SCAQMD had recommended a more stringent air quality mitigation measure that would require use of Tier 3 and 4 construction equipment rather than the Tier 2 equipment provided in the final EIR.  The City of Temecula had also requested compliance with the 2010 CA Energy Code (rather than the 2008 Code) and the 2010 CA Green Building Code.

In response to SCAQMD’s comment, the County explained that the mitigation measure in the final EIR reflected the construction equipment that was anticipated to be reasonably available at the time of project construction and that it did not anticipate the reasonable availability of equipment meeting the more stringent requirements proposed. The County’s response to the City of Temecula explained the rationale for rejecting the proposed measures, noting that the County’s existing mitigation measures already required compliance with any legally mandated increase in the standard. The court found these responses sufficiently detailed to support the County’s determination that the more stringent standards proposed were not feasible and provided adequate support for the County’s decision not to adopt the recommended mitigation measures.

Findings supporting an agency’s administrative decision may mirror statutory language 

Findings in a city council resolution that recite language in the city’s municipal code may be sufficient to demonstrate the reasoning  supporting the council’s decision. Young v. City of Coronado, No. D070210 (4th Dist. April 4, 2017).

The owners of a small dwelling in the City of Coronado applied for a permit to demolish the structure. Because the structure was more than 75 years old (built in 1924), the city’s historic resource commission reviewed it for potential historical significance before the city issued the permit. Under the city’s municipal code, a resource is historically significant if it is more than 75 years old and meets at least two of five criteria listed in the code.

The city’s historic resource commission determined that the cottage was a historic resource because it met two of the listed criteria, identified in the municipal code as Criteria C and D. A resource is historically significant under Criterion C if “[i]t possesses distinctive characteristics of an architectural style, and is valuable for the study of a type, period, or method of construction and has not been substantially altered.” A resource is historically significant under Criterion D if “[i]t is representative of the notable work of a builder, designer, architect, artisan or landscape professional.” The landowners appealed the commission’s decision to the city council, which adopted a resolution affirming the commission’s historic resource designation. The landowners then sought a writ of mandate setting aside the city council’s decision.

The court of appeal rejected the landowners’ argument that the city council’s findings in its resolution were legally insufficient. The California Supreme Court held in Topanga Association for a Scenic Community v. County of Los Angeles, 11 Cal. 3d 506 (1974), that an agency must support its administrative decisions with findings that bridge the analytic gap between the raw evidence and agency’s decision. The court of appeal explained that when an agency must make specified factual findings before making a decision, “a resolution that incorporates findings that reflect the ordinance’s language could sufficiently inform the parties of the analytical path adopted by the administrative agency in reaching its ultimate conclusion.”

The court held that the city council’s findings sufficiently supported its conclusion that the property was a historic resource, even though the findings recited parts of the ordinance’s language. First, the court explained that certain required findings could only be made by mirroring the ordinance’s language (for example, finding that the resource had “not been substantially altered” since it was built). Second, the court noted that the city council’s findings did not merely copy the ordinance’s language in its entirety, but also included findings that were specific to the property at issue, by referring to the dwelling’s architectural style and its builder.

The court also rejected the landowners’ argument that the city council’s findings were not based on the “Historic Resource Designation Guidelines” that the city council had previously adopted. Although the guidelines were not expressly referred to by name in the findings, the court concluded that it was clear from the city staff report that the staff had used the guidelines to evaluate the property’s historic significance.

Finally, the court concluded that the city council’s findings were supported by substantial evidence. The court cited evidence in the administrative record, including the city staff report, that supported each of the city council’s findings. The court noted that the mere presence of contradictory evidence in the administrative record was not sufficient to overturn the city council’s decision, since it was for the agency, not the court, to weigh the preponderance of conflicting evidence. As long as the findings were supported by substantial evidence, as they were here, the court’s inquiry was at an end.

Court of Appeal, in split decision, upholds CARB cap-and-trade program

In a 2-1 decision, the Court of Appeal upheld the California Air Resources Board’s cap-and-trade program for greenhouse gas allowances. California Chamber of Commerce v. State Air Resources Board,  No. C075954 (3rd Dist., April 6, 2017). In upholding the validity of the auction used by the California Air Resources Board to distribute a portion of the greenhouse gas allowances auction, the opinion created an important new test for assessing whether the auction should be considered a tax. The majority found that the allowance auction was not compulsory and provided a valuable commodity to the purchaser, and thus was not a tax requiring supermajority approval under Proposition 13.

Background on CARB’s GHG Cap-and-Trade Program

In 2006, California enacted AB 32 with the goal of reducing greenhouse gas (GHG) emissions to 1990 levels by the year 2020. The California Air Resources Board (CARB) is the designated state agency charged with regulating sources of GHG emissions under AB 32. AB 32 directed CARB to adopt rules and regulations to achieve the maximum technologically feasible and cost-effective reductions in GHG emissions.

Smoking power plantPursuant to AB 32’s directives, CARB promulgated regulations that created a cap-and-trade-program. The program sets an aggregate emissions “cap” on covered entities and enforces the cap by issuing a limited number of allowances, the total value of which is equal to the cap. Covered entities must demonstrate compliance with the program by surrendering allowances that correspond to that entity’s emissions requirements.

Emissions allowances can be obtained in three ways: 1) Some allowances are distributed by CARB for free; 2) allowances are distributed by CARB through an auction; and 3) allowances can be obtained by trading on the secondary market.

CARB’s allowance auction takes place through a single round of sealed bidding, and winners pay the market clearing price. In 2012, the state legislature passed four bills specifying how the auction proceeds would be used to support the regulatory purposes of AB 32.

Several corporations and industry groups challenged the auction mechanism as exceeding CARB’s statutory authority under AB 32 and as an unconstitutional tax that violated the supermajority requirements of Proposition 13. Continue Reading

Delisting petition may challenge original listing of endangered species based upon new evidence

The California Supreme Court has ruled that, under the California Endangered Species Act, a plaintiff may use a delisting petition to challenge the original decision by the California Fish and Game Commission to list an endangered species—even in the absence of changes occurring after the original listing of the species.  Central Coast Forest Association v. Fish and Game Commission No. S208181 (Calif. Supreme Ct., Feb. 27, 2017). The Court found that commission regulations were not intended to preclude delisting where new scientific evidence shows that the species never qualified as endangered in the first instance. Our full report on the case and its implications, by Laura Godfrey Zagar and Anne Beaumont, is available here.Silver Salmon

Dispute over applicability of HOA tree-trimming requirements was an “issue of public interest” sufficient to trigger protections of anti-SLAPP statute

A homeowner who invoked his HOA’s dispute resolution process regarding tree-trimming requirements and was sued by another homeowner based on that application could successfully bring an anti-SLAPP motion on the ground that the suit interfered with exercise of First Amendment rights.  Colyear v Rolling Hills Community Association of Rancho Palos Verdes, No. B270396 (2nd Dist., Feb. 28, 2017).

Defendant and homeowner Liu submitted an application to his homeowner’s association (HOA) to invoke the HOA’s dispute resolution process against a neighbor who refused to trim trees blocking Liu’s view. In response, a different neighbor, Colyear, sued Liu and the HOA, alleging that two of the offending trees were actually on his property, that the relevant tree-trimming covenant encumbered his property, and that Liu and the HOA were wrongfully clouding title to his property.  Liu withdrew his application and filed a special motion to strike Colyer’s claims under the anti-SLAPP statute, which the trial court granted.

Hanging arborist cutting branch with small saw.

The Second District Court of Appeal found that Liu’s application was made in furtherance of the exercise of the constitutional right of petition in connection with  an issue of public interest under California’s anti-SLAPP statute. The court rejected Colyear’s claim that Liu’s application simply involved a private tree-trimming dispute between two neighbors.  It found that an “issue of public interest” was present because there was an ongoing controversy, dispute or discussion regarding the applicability of tree-trimming covenants to lots not expressly burdened by such covenants and the HOA’s authority to enforce such covenants. Noting that a number of hearings, letters, and challenges to the HOA’s policy had been made over several years, the court found that Liu’s application constituted a statement made in connection with a matter of public interest within the meaning of the anti-SLAPP statute. The court determined that the second requirement of an anti-SLAPP motion – that the plaintiff is unable to demonstrate a probability of prevailing against the defendant — was also met because Liu had withdrawn his application before any action on it was taken.  Thus, the trial court properly granted the motion and dismissed the suit.

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