Julie Jones

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A court of appeal has rejected CEQA and public trust challenges to a State Lands Commission lease extension allowing the Diablo Canyon nuclear power plant to continue operating through 2025.  World Business Academy v. California State Lands Commission, 24 Cal. App. 4th 476 (2018).

Pacific Gas & Electric Company plans to cease operating Diablo Canyon in 2025, when the plant’s federal licenses will expire.  The plant’s cooling water intake and discharge structures are on state-owned submerged and tidal lands, for which the Commission had issued leases to PG&E expiring in 2018 and 2019.  The Commission granted PG&E a consolidated lease extension through 2025, relying on CEQA’s categorical exemption for continued operation of existing facilities.

CEQA’s categorical exemptions are subject to several exceptions that can force a lead agency to prepare a negative declaration or an environmental impact report.  The “unusual circumstances” exception applies “where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.”  Here, Diablo Canyon opponents argued that continued operation of the state’s last nuclear power plant was rife with unusual circumstances that could cause significant environmental effects.

To show that the unusual circumstances exception applies, normally a challenger must show both:  1) unusual circumstances; and 2) a reasonable possibility of a significant environmental effect due to those unusual circumstances.  Here, the Commission had made no finding regarding unusual circumstances.  With no finding before it, the court of appeal elected to assume unusual circumstances did exist, and then proceeded to the second half of the test:  whether there was a fair argument that the lease extension would cause significant environmental impacts.
Continue Reading Seven-Year Extension of Diablo Canyon Lease Held Exempt from CEQA

Rejecting most challenges to the environmental impact report for a new railyard near the Port of Los Angeles, a court of appeal nevertheless held that the EIR must be decertified because it did not adequately address air quality impacts in the vicinity of the new yard. City of Long Beach v. City of Los Angeles…

In a precedent-setting decision, the Fifth District Court of Appeal has upheld two key aspects of the 2014 environmental impact report for a refinery expansion project. Association of Irritated Residents v. Kern County Board of Supervisors No. F073892 (5th Dist., Nov. 21, 2017). First, the court approved the use of 2007 operating data for the…

A court of appeal has ruled that opponents of a new Planned Parenthood clinic did not establish a fair argument that anti-clinic protests might cause significant environmental effects.  Therefore, the City of South San Francisco did not err in finding the clinic project exempt from CEQA.  Respect Life South San Francisco v. City of South…

A CEQA case challenging the City of Wildomar’s approval of a Wal-Mart retail complex has been dismissed because the petitioner refused to comply with discovery requests regarding its standing to sue.  Creed-21 v. City of Wildomar, 4th Dist. Court of Appeal Case No.E066367 (pub. order 12/19/2017).

CEQA cases generally are decided on the administrative…

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.
Continue Reading 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

A local agency’s environmental impact report must identify any areas on a project site that might qualify as “Environmentally Sensitive Habitat Areas” under the California Coastal Act, and must account for those areas in the EIR’s analysis of project alternatives and mitigation measures.  Banning Ranch Conservancy v. City of Newport Beach, California Supreme Court…

A Summary Of Published Appellate Opinions Under The California Environmental Quality Act

In 2016, the California appellate courts issued published opinions in 21 CEQA cases. In several of those opinions, including a ground-breaking decision by the California Supreme Court, the courts grappled with limits on the scope of required environmental review for a subsequent project…