Barbara Schussman

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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…

In response to a business community campaign calling for broad CEQA reform, California State Senator Senate President pro Tempore Darrell Steinberg released his highly anticipated CEQA “modernization” bill,  SB 731.  So far, the bill is more remarkable for what it lacks, than for what it contains: 

  • A Co-author.  2012’s chief CEQA reform champion,

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The California Supreme Court announced on February 13 it has accepted review of Tuolumne Jobs & Small Business Alliance v. Superior Court, the recent decision (see our November 2 post) holding that a city council cannot choose to enact a voter-sponsored initiative without first complying with CEQA.  A previous published CEQA case had…

The California Supreme Court has issued a landmark decision holding that the exhaustion doctrine – which requires parties to raise their claims at the administrative level before litigating them in court — applies to challenges to an agency decision that a project is exempt from CEQA.  Overturning a 15-year-old precedent, the court ruled that if the decision-making agency holds a hearing on the project, prospective litigants must apprise the agency of the relevant issues before they can bring them to court.  Tomlinson v. County of Alameda, Case No. S188161, 2012 WL 2145906 (Cal. June 14, 2012)

The issue exhaustion rule has been murky ever since a 1997 case, Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster, 52 Cal. App. 4th 1165, stated that the exhaustion requirement did not apply to a challenge to a decision that a project was exempt from CEQA.  More recently, there have been conflicting opinions—the court of appeal’s decision this case, which sided with Azusa, and a two-year-old decision holding that exhaustion was required (Hines v. California Coastal Com., 186 Cal. App. 4th 830 (2010)).

The Supreme Court made the issue seem easy.  The court explained that CEQA expressly states that a proposed project can be challenged only on grounds that “were presented to the public agency orally or in writing by any person during the public comment period . . . or prior to the close of the public hearing on the project before the issuance of the notice of determination.”  (Pub. Res. Code 21177(a))  The court acknowledged that when an agency determines a project is exempt from CEQA, there is no public comment period, so that aspect of this test does not apply.  But if the public agency holds a hearing on the project before deciding it is exempt from CEQA, the court ruled the statutory requirement applies.  It does not matter whether the hearing was required by law.  Nor does it matter whether the agency ultimately filed a notice of determination.
Continue Reading Speak Now or Forever Hold Your Peace — Issue Exhaustion Applies to CEQA Exemptions.