A recent Ninth Circuit decision offers guidance on evaluating connected actions and cumulative impacts under NEPA. The court held that an agency can defer consideration of an action’s cumulative impacts in an EIS when the agency makes clear that it intends to evaluate the cumulative impacts in a later EIS. The court also held that

After a public agency approves a project, the agency’s actions to implement the project—in this case, applying for and accepting a streambed alteration agreement from the California Department of Fish and Wildlife—are not subsequent discretionary approvals that require supplemental environmental review under CEQA. Willow Glen Trestle Conservancy v. City of San Jose, 49 Cal.App.5th 127 (2020)

The project in this case involved the City of San Jose’s replacement of a wooden railroad bridge with a new steel truss pedestrian bridge that would connect with a local trail system. The City adopted a mitigated negative declaration and approved the project in 2014. (The MND was challenged in a prior lawsuit and, as we previously reported, in 2016 the court of appeal upheld the MND and the city’s determination that the railroad bridge was not a historical resource.)

After approving the project, the City applied for and received a streambed alteration agreement from CDFW. The original SAA for the project expired at the end of 2017, before the project was completed. The City then applied for a new SAA and, following some negotiations over measures with CDFW, accepted and signed a new SAA in 2018. By that time, the railroad bridge had been added to the California Register of Historical Resources.

The petitioner sued the City, arguing that the City’s application for and acceptance of a new SAA were discretionary approvals that required supplemental environmental review under CEQA. (Under Public Resources Code section 21166 and CEQA Guidelines section 15162, supplemental environmental review following project approval is required only in connection with a subsequent discretionary approval for the project.)
Continue Reading Agency Actions to Implement a Previously-Approved Project Are Not Subsequent Discretionary Approvals Requiring Supplemental Environmental Review

An agency could be equitably estopped from relying on the 35-day statute of limitations applicable to a CEQA Notice of Exemption where the agency had misled the public into expecting the agency would instead circulate a Final EIR for public comment and file a Notice of Determination following project approval. Citizens for a Responsible Caltrans Decision v. California Department of Transportation, 46 Cal. App. 5th 1103 (2020).

Caltrans and the San Diego Association of Governments jointly developed the North Coastal Corridor (NCC) Project, which included multiple highway and railroad improvements along a 27-mile corridor between San Diego and Oceanside. One of the components of the NCC Project was construction of interchange ramps connecting Interstate 5 and State Route 56. Streets and Highways Code Section 103 created a streamlined approval process for the NCC Project, including an exemption of certain project elements from CEQA review.

Caltrans’s Final EIR for the I-5/SR-56 interchange contained conflicting language regarding the CEQA process: while it stated that the project was exempt from CEQA, it also stated that Caltrans would decide whether to approve the project after circulating the Final EIR and would file a Notice of Determination if it approved the project. A few weeks after publishing the Final EIR, and before the start of the public comment period on the Final EIR, Caltrans approved the interchange project and filed a Notice of Exemption with the State Clearinghouse. The Notice of Exemption had a different State Clearinghouse Number than the Final EIR. Caltrans then initiated the 30-day review period on the Final EIR and subsequently responded to the comments that it received on the Final EIR.
Continue Reading Misrepresentations Can Bar Agency’s Reliance on CEQA Statute of Limitations

Automobile delay (as measured solely by roadway capacity or traffic congestion) cannot constitute a significant environmental impact, even for projects that were approved before the new CEQA guidelines on transportation impacts were certified in December 2018. Citizens for Positive Growth & Preservation v. City of Sacramento, 2019 WL 6888482.

The case involved a challenge to the City of Sacramento’s 2035 General Plan, which it adopted in March 2015. The plaintiff alleged that the city violated CEQA and the Planning and Zoning Law.

CEQA: Transportation Impacts

Analyzing Transportation Impacts Under CEQA. Public Resources Code section 21099 (commonly known as SB 743) directed the Office of Planning and Research to develop guidelines for assessing transportation impacts based on vehicle miles traveled (VMT). SB 743 provides that upon certification of implementing guidelines by the Natural Resources Agency, “automobile delay, as described solely by level of service [LOS] or similar measures of vehicular capacity or traffic congestion shall not be considered a significant impact on the environment . . . except in locations specifically identified in the guidelines, if any.”

Section 15064.3 of the CEQA Guidelines, adopted in 2018 to implement SB 743, provides that, except for roadway capacity projects, “a project’s effect on automobile delay shall not constitute a significant environmental impact.” Further, the SB 743 guidelines specify that generally, VMT is “the most appropriate measure of transportation impacts.” The guidelines apply prospectively, and apply statewide beginning July 1, 2020, unless an agency elects to be governed by them sooner. (For a detailed analysis, see our report on the SB 743 Guidelines.)
Continue Reading Automobile Delay May Not Be Treated As a Significant Environmental Impact

An agency’s failure to maintain a historic building—“demolition by neglect”—is not a “project” subject to CEQA. Lake Norconian Club Foundation v. California Department of Corrections and Rehabilitation, No. A154917  (First District Court of Appeal, Sept. 13, 2019).

The Lake Norconian Club is a former hotel that is listed on the National Register of Historic

The California Supreme Court clarified what activities are subject to CEQA in its recent decision in Union of Medical Marijuana Patients, Inc. v. City of San Diego, No. S238563, 2019 WL 3884465 (Aug. 19, 2019). First, the court held that enactment of a zoning ordinance is not necessarily a project in all circumstances. Second,

Planning and zoning decisions by a non-legislative body or public official authorized under a municipal code are subject to the 90-day statute of limitations of Government Code section 65009(c)(1), the court of appeal ruled in 1305 Ingraham, LLC v. City of Los Angeles, 32 Cal. App. 5th 1253 (2019).

In June 2016, the planning

An inverse condemnation challenge to a permit denial is not ripe until the government makes a final determination regarding the scope of allowable development on a plaintiff’s property, the California Court of Appeal held in York v. City of Los Angeles, 33 Cal. App. 5th 1178 (2019).

The plaintiffs submitted an application to the