A Summary of Published Appellate Opinions Under the California Environmental Quality Act
The courts issued relatively few published CEQA decisions in 2021, with no California Supreme Court activity and no blockbuster court of appeal opinions. But two cases addressed topics of great current interest: wildfire and climate change impacts. One court also settled an important question under CEQA’s frequently invoked categorical exemption for infill development projects. And in a big year for exhaustion of administrative remedies as a prerequisite to litigation, three decisions reemphasized the key role played by local administrative procedures in the CEQA process.
Exemptions. Three decisions on exemptions from CEQA came out during the year. In one, the court had no trouble upholding application of the categorical exemption for small infill projects to a new gas station in a large shopping center, rejecting an argument that because the entire shopping center comprised more than 5 acres, the project, which would be built on only 2.5 acres, failed to meet the exemption’s limitation to 5-acre “project sites.” In a second case, a court rejected an attempt to apply the existing facilities exemption to operations of an unlined landfill, ruling that unlined landfills did not constitute “facilities.” Finally, in a case involving the State Water Resources Control Board’s program for registering small water diversions when it receives a completed registration form, the court concluded: “CEQA does not regulate ministerial decisions—full stop.”
Negative Declarations. The two negative declaration cases decided during the year addressed key topical issues. In a case in which neighbors raised concerns about evacuation during wildfires, the court concluded the objections were grounded in speculation rather than fact-based opinion, and upheld the negative declaration. In the other case, the court found the agency had plainly erred by relying on a faulty climate action plan consistency checklist to find the project would not have a significant greenhouse gas impact.
Environmental Impact Reports. Several of the decisions involving EIRs are noteworthy. The court of appeal reviewing the EIR for a new resort at Squaw Valley found it fatally flawed on multiple counts: Its description of the environmental setting failed to highlight the features of Lake Tahoe that make it a unique regional resource, and its analysis of water quality, air quality and construction noise impacts was insufficient. By contrast, a court held that an EIR on a plan to restore natural resources and improve visitor facilities in a wilderness recreation area passed muster, even though it only considered one alternative — the no project alternative. Another opinion in an EIR case provides useful guidance on the often perplexing requirement that EIRs identify “inconsistencies with the applicable general plan.” The deference due to a local jurisdiction in the interpretation and application of its own general plan under the Planning and Zoning Law cannot be evaded through a CEQA claim an EIR is defective by failing to “inform the public” of an inconsistency the agency has not itself found.
Subsequent CEQA Review. The only decision involving subsequent CEQA review addressed a set of somewhat puzzling claims. The plaintiff challenged a decision by the State Lands Commission, acting as a responsible agency, to prepare a supplemental EIR, rather than a subsequent EIR, on limited changes to a previously approved desalination plant. The court found no merit to appellant’s novel arguments that the commission was required to “step in as lead agency” and prepare a subsequent EIR on “the project as a whole” and that a supplemental EIR focusing on the project changes constituted improper “piecemeal” environmental review.
CEQA Litigation. Several thought-provoking opinions issued during the year involved CEQA litigation. In one, a court of appeal rejected a trial court order that allowed the agency to cure a defective mitigated negative declaration by preparing an EIR limited to three potentially significant impacts. The court held that environmental review for a project cannot be split between two documents—a negative declaration and an EIR—and ruled that a “full EIR” was required.
In a decision that may cheer those who argue CEQA lawsuits are too often filed for improper purposes, the court found an aggrieved developer had identified evidence sufficient to allege a claim for malicious prosecution against a neighbor who had attacked the mitigated negative declaration for the developer’s project. Public agencies and project proponents should note, however, that behavior as egregious as that alleged against the neighbor in this case is, thankfully, rare.
Somewhat improbably, three of last year’s decisions involving CEQA litigation addressed a rarely asked question: What happens if the plaintiff doesn’t join the real party in interest in the lawsuit before the time to do so runs out? The answer differs depending on the circumstances, but in sum: If a real party in interest is not sued timely and the real party is found to be “indispensable” as defined in the Code of Civil Procedure, then the suit will be dismissed.
Three other procedural decisions also provide an important reminder for both potential litigants and public agencies: To the extent a project opponent does not perfect its CEQA claims by following the local agency’s procedures for internal appeal of a CEQA determination, the opponent cannot pursue those claims in court.
Finally, one case decided during the year, although not surprising in its legal analysis, will likely be best remembered for its history: After 27 years, the litigation over the EIRs on the Monterey Agreement—the agreement that changed the Department of Water Resource’s policies for allocating water supplied by the State Water Project—finally slogged its way to the finish line with an appellate court decision that resolved the remaining appeals in DWR’s favor, and a determination by the California Supreme Court that it would not review that decision.
The following summaries identify the key issues in the cases decided in 2021. Each of these case summaries links to a post on this site that provides a more detailed description of the court’s opinion.
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