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In Save Berkeley’s Neighborhoods v. Regents of the University of California, 51 Cal.App.5th 226 (2020), the court of appeal rejected the University of California’s argument that it need not have prepared a Subsequent or 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 petitioners alleged that the LRDP EIR stated enrollment would increase by 1,650 students over the life of the plan. They also claimed that, beginning in 2007, the University made periodic decisions to increase 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 show a legal violation of CEQA, even if the allegations were true.

The court of appeal first recognized the general rule that CEQA comes into play whenever a public agency makes a discretionary decision to change a project in a way 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 a public university to modify an approved development plan by increasing enrollment beyond the levels specified in the project description is a change that is subject to CEQA.
Continue Reading Public Universities Must Comply With CEQA When Deciding to Increase Enrollment Beyond Levels Specified in Development Plan EIR

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 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, 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

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

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

The Second District Court of Appeal held that a project’s potentially significant environmental impacts required preparation of an EIR rather than the mitigated negative declaration adopted by the City. Save the Agoura Cornell Knoll et al. v. City of Agoura Hills et al., 46 Cal.App.5th 665 (2020).

The project consisted of 35 residential apartment units plus retail, restaurant, and office space on an 8.2-acre site located in Agoura Hills. The City approved a Mitigated Negative Declaration for the project, finding no substantial evidence of a significant effect on the environment because the project incorporated mitigation measures it believed would reduce potential impacts to a less-than-significant level.

  1. Impacts on Cultural Resources

The court of appeal determined the MND’s mitigation measures were insufficient to avoid or reduce potential impacts to archeological and tribal cultural resources to a less-than-significant level. The proposed  measures, it found, lacked an analysis of whether the resources within the proposed construction site could be avoided. Nor did the measures specify performance criteria for evaluating the feasibility of avoidance as an alternative to excavation. Further, substantial evidence provided by an expert in Native American archeology and history demonstrated that the project could likely cause significant permanent damage to the site and the proposed data recovery program was inadequate to mitigate that damage.

  1. Impacts on Sensitive Plant Species

The project site contained three special-status plant species that would be significantly impacted by project grading, landscaping, and fuel modification activities. The court found that, even with the proposed mitigation measures, the project could still have a significant impact on these sensitive plant species. It concluded that the mitigation measures improperly deferred formulation of certain mitigation efforts, failed to describe specific performance criteria to ensure that mitigation would be effective, relied on outdated botanical surveys of the area, and did not provide feasible alternatives if proposed salvage and replanting efforts failed.
Continue Reading Mitigated Negative Declaration Inadequate for Mixed-Use Project

Attorney’s fees could not be recovered in a CEQA action in which the plaintiff obtained an initial stay of the project but the applicant later had the project approvals rescinded, citing inability to afford to litigate the case. Canyon Crest Conservancy v. County of Los Angeles, 46 Cal.App.5th 398 (2020).

Doron Kuhn sought to build a single-family residence on an undeveloped lot in Los Angeles County.  Because the property was located on a steep hillside and construction would require removal of a protected coastal oak tree, Kuhn obtained a minor conditional use permit and an oak tree permit from the county. Plaintiff, Canyon Crest Conservancy, an organization formed by two of Kuhn’s neighbors, challenged the approvals alleging violations of CEQA.

After the trial court issued a stay of the permit approvals to preserve the status quo, Kuhn (who had been self-represented throughout the litigation) asked the County to vacate the permit approvals, stating he could not afford to continue the litigation. The County complied and plaintiff dismissed the case. The plaintiff then filed a motion for attorney fees under the private attorney general statute, Code of Civil Procedure section 1021.5. The trial court denied the motion, concluding that plaintiff failed to establish any of the requirements for a right to fees under the statute.

To obtain fees under section 1021.5, the moving party must establish that the action resulted in the enforcement of an important right affecting the public interest and that the action conferred a significant benefit on the public or a large class of persons.
Continue Reading Fees Under Private Attorney General Doctrine Denied Where CEQA Lawsuit Neither Enforced Important Rights Nor Conferred Significant Public Benefits