While a number of court decisions have considered how CEQA lead agencies should assess the significance of a project’s greenhouse gas emissions, few have examined mitigation measures for those impacts. In Golden Door Properties, LLC v. County of San Diego, 50 Cal. App. 5th 467 (2020), the Fourth District Court of Appeal issued the

The Third District Court of Appeal held that CEQA and permitting challenges to an expansion project were moot because defendants had already completed construction and did not build the project in violation of any court orders or in bad faith. Parkford Owners for a Better Community v. County of Placer, 54 Cal.App.5th 714 (2020).

Where a county ordinance allowed for exercise of discretion in some circumstances regarding issuance of well construction permits, such permits could not categorically be classified as ministerial and hence exempt from CEQA review. Protecting Our Water and Environmental Resources v County of Stanislaus, No. S251709 (Cal. Supr. Ct., Aug. 27, 2020).

Stanislaus County adopted

The Third Appellate District determined that Placer County met relevant statutory requirements when it partially abandoned public easement rights in a road originally intended to be used only for emergency access and public transit vehicles that residents of the area had been using as an unauthorized short cut between two neighboring residential subdivisions. Martis Camp Community Association v County of Placer, No. C087759 (Third. Dist., Aug 1, 2020).

Background.

The road at the center of the dispute connects Martis Camp, a private gated community adjacent to the Northstar ski resort development, and the Retreat at Northstar, a residential development next to Martis Camp located within the Northstar resort itself.

In 2003, Placer County adopted the Martis Valley Community Plan, which provided that a road connecting Martis Camp and the Retreat would be restricted to public transit and emergency access only. The EIRs for the Martis Camp and Retreat developments, approved two years later, also envisioned that the road would be restricted to these uses. Despite these restrictions, several years after the road was constructed, Martis Camp residents began using it as a short cut through the Retreat community to Northstar village.

By 2014, from 100 to 250 private vehicles were using the road on a daily basis, and it was estimated that once Martis Camp was built out, traffic could triple.  After various efforts to stop the unauthorized use of the road failed, Retreat property owners requested that the County abandon public road easement rights in the road.  Following a series of public hearings, the Board of Supervisors approved a partial abandonment, thereby restricting use of the road to Retreat property owners and emergency and public transit vehicles only, consistent with the uses described and analyzed in the Community Plan and the EIRs for the two developments.

The Martis Camp homeowners’ association and some individual property owners (the “Martis Camp homeowners”) filed suit to challenge the County’s action, claiming it violated the statutory requirements for abandonment of a public road; that it impaired their abutter’s rights to access the road giving rise to an inverse condemnation claim; and that the Board  had violated both the Brown Act and CEQA when it approved the abandonment.  The trial court ruled for the County on each of these claims and the Martis Camp homeowners appealed.

The Court of Appeal’s Decision

Abandonment of a Public Road.   The court of appeal rejected the Martis Camp homeowners’ claim that the County’s decision violated the statutory requirements for the abandonment of a public road, explaining that under the Streets and Highways Code, a county is authorized to vacate all or part of a street, highway, or public service easement where it makes two findings — first, that the road is unnecessary for present or prospective public use, and second, that the abandonment is in the public interest.
Continue Reading County May Abandon Public Easement Rights to Prevent Unauthorized Use of Road

In Save Berkeley’s Neighborhoods v. Regents of the University of California, No. A157551 (June 25, 2020) the court of appeal rejected the University of California’s argument that it need not have prepared a Supplemental EIR to analyze the effects of its discretionary decisions to increase enrollment on the Berkeley campus. The University had prepared a Program EIR for its UC Berkeley Long Range Development Plan in 2005. The LRDP EIR anticipated enrollment would increase by 1,650 students over the life of the plan. Beginning in 2007, the University made periodic decisions to increase Berkeley enrollment such that, by 2018, enrollment had increased by 8,300 students.

Petitioners argued that the University’s decisions to increase enrollment constituted changes to the previously approved project and that the University had violated CEQA each time it decided to increase enrollment in the absence of a Supplemental or Subsequent EIR. They also claimed they did not know about the University’s decisions to increase enrollment until 2017 and argued that their complaint was therefore timely.  The University sought dismissal of the lawsuit on the ground that the claims did not state a legal violation of CEQA, even if the allegations were true.

The court of appeal first recognized the general rule that CEQA applies whenever a public agency makes a discretionary decision that could have a physical effect on the environment. Because changes in enrollment have the potential to result in physical environmental effects, this general rule would dictate that decisions by public universities to increase enrollment are projects subject to CEQA.
Continue Reading Public Universities Must Comply with CEQA when Deciding to Increase Enrollment

The Fifth District Court of Appeal found multiple defects in a Kern County EIR for a proposed ordinance streamlining the permitting process for new oil and gas wells. King and Gardiner Farms, LLC v. County Kern 45 Cal.App.5th 814 (2020).

The published portions of the Court’s 150-page opinion held the EIR: (1) impermissibly deferred formulation and implementation of mitigation measures addressing significant impacts to water supplies, and did not adequately discuss the effectiveness of those measures; (2) failed to properly mitigate farmland conversation impacts due to inappropriate reliance on agricultural conversation easements as offsetting mitigation; and (3) improperly applied a single threshold for determining the significance of the project’s noise impacts.

The Ordinance

Kern County approved an ordinance to streamline the permitting process for new oil and gas wells under which all such activities would require a permit involving, at minimum, a ministerial conformity review. This ministerial permit review process incorporated mitigation measures identified in the  EIR  certified by the County, which estimated that 2,697 new producing oil and gas wells would be drilled annually from 2013 through 2040, and 2,221 old wells would be capped and abandoned each year.

Water Supply Impacts

The appellate court concluded that mitigation measures to address water supply impacts — including requiring oil industry users to work together to develop and implement a plan to reduce water use — inappropriately deferred formulation of the measures or delayed their implementation.  The EIR did not commit the County itself to the measures, improperly relying on unidentified third parties who might or might not implement them at some unknown point in the future.
Continue Reading EIR Improperly Deferred Formulation and Implementation of Mitigation Measures for New Oil and Gas Drilling

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, No. H047068  (6th Dist., May 18, 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 an Already-Approved Project Are Not Subsequent Discretionary Approvals Requiring Supplemental Environmental Review

Several months ago, a court of appeal upheld a South Coast air district EIR for an oil refinery modernization project, concluding the district had discretion to use  “near-peak” emissions, rather than average emissions, as the baseline for calculating the air pollution expected from the project. Communities for a Better Environment v. South Coast Air Quality