A court of appeal ruled that provisions of the California Constitution requiring a supermajority vote for special taxes imposed by local government do not apply to a special tax enacted by local initiative.  City and County of San Francisco v. All Persons Interested in the Matter of Proposition C, 51 Cal. App. 5th 703 (2020).

In 2018, San Francisco voters approved Proposition C, a citizen-sponsored initiative, with an affirmative vote of 61.34% of those who voted on the measure.  Proposition C authorized the City to collect additional business taxes to be placed in a dedicated fund and used solely for specified homeless services, including housing programs, mental health services, prevention programs and hygiene programs. Relying on California Propositions 13 (1978) and 218 (1996), business and taxpayer associations contended that Proposition C was invalid because it had not been enacted by two-thirds of the voters.

The court rejected the associations’ arguments and upheld Proposition C. It relied heavily on California Supreme Court precedent holding that the two-thirds majority vote requirement of Proposition 13 did not apply to a statewide special tax adopted by initiative, and that the requirement of Proposition 218 that taxes be approved at a general election likewise did not apply to a general tax enacted by local initiative. The California Supreme Court’s prior cases had made clear that the provisions of Propositions 13 and 218 imposing requirements on cities, counties, special districts and other local governmental entities were to be interpreted as applying only to councils, boards and other representative bodies, not the electorate.  As determined in those prior cases, there is nothing in either Proposition 13 or Proposition 218 that impliedly overruled the power of initiative to enact laws by simple majority vote. Moreover, while voters are bound by the substantive limitations applicable to legislative actions taken by boards and councils, they are not bound by procedural requirements such as a two-thirds vote requirement.

The associations also contended that the San Francisco charter, which states that initiative measures must be “within the powers conferred upon the Board of Supervisors” precluded the voters from enacting taxes without a supermajority vote.  The court rejected that argument as well, again noting that such procedural requirements do not apply to the voters.  It upheld the trial court’s grant of judgment on the pleadings in favor of the city, concluding that “passage of Proposition C pursuant to a majority vote of the City’s electorate was a valid exercise of the people’s initiative power.”

A Summary of Published Appellate Opinions Involving the California Environmental Quality Act

Despite relatively few published opinions this year, there were significant appellate court rulings on a range of topics, including whether projects are properly classified as discretionary or ministerial, the adequacy of mitigation, agencies’ document retention obligations, the remedy for an inadequate EIR, mootness, and statutes of limitations.

The one California Supreme Court CEQA decision addressed the distinction between discretionary projects and exempt ministerial projects. In Protecting Our Water and Environmental Resources v. County of Stanislaus, the court held that the agency’s issuance of  well permits was discretionary in certain circumstances because the permit approval process required the agency to exercise independent judgment and allowed it to modify a project in response to environmental concerns.

A key theme in several cases, involving both EIRs and negative declarations, was courts’ critical look at the adequacy of mitigation measures. In three cases, the court held that agencies had improperly deferred formulation of mitigation. In one case, the court held that a greenhouse gas mitigation measure allowing for carbon offsets was inadequate because it lacked assurances that the offsets would be effective mitigation and it did not specify objective standards for implementation. In another case, the court held that a mitigation measure requiring oil and gas drillers to develop and implement a plan to reduce their water use improperly deferred formulation and implementation of mitigation and lacked enforceability. The court also ruled that agricultural conservation easements are not adequate mitigation for the loss of farmland because they do not offset that loss or create new farmland. In a third case, the court held inadequate a mitigation measure that required construction monitoring and development of a data recovery excavation program if avoidance of archaeological sites was not possible; the agency had not analyzed whether archaeological sites could be avoided and the mitigation measure did not specify performance criteria for evaluating the feasibility of avoidance.

In a significant decision on administrative records, a court held that a lead agency must save all emails about a project, notwithstanding any contrary records retention policy. The court further held that a lead agency could be compelled to produce potential administrative record documents through discovery.

One court applied the mootness doctrine to dismiss a case where construction of the project was completed during litigation. In that case, the developer did not begin construction in violation of any court orders or in bad faith, and the petitioners waited to seek an injunction until construction was nearly completed.

In a decision that conflicts with holdings from other appellate districts, the Fifth District held that partial decertification of an EIR is never permissible when the EIR has been adjudged inadequate; rather, decertification of the entire EIR is the only remedy. The court also held that even under the rule followed by other courts, partial decertification was not appropriate because the EIR’s defects could not be severed from the statement of overriding considerations that supported the agency’s approval of the project.

The following summaries are intended to identify the key issues in the cases decided in 2020. Each summary is linked to a more detailed post on this site describing the court’s opinion. Continue Reading CEQA YEAR IN REVIEW 2020

A federal agency is not required to prepare an environmental impact statement for an action with uncertain environmental effects if the agency reasonably predicts that the effects will not be significant based on available evidence. American Wild Horse Campaign v. Bernhardt, 963 F.3d 1001 (9th Cir. 2020).

The plaintiffs challenged the Bureau of Land Management’s plan to geld wild male horses as part of its program for managing an overpopulation of wild horses in northeastern Nevada. To comply with NEPA, BLM prepared an environmental assessment and issued a finding of no significant impact. The plaintiffs argued that BLM should have prepared an EIS, citing several of the intensity factors that may require an EIS according to the Council on Environmental Quality’s NEPA regulations in effect at the time. Those regulations required agencies to consider whether an action would have significant impacts based on the action’s context and ten factors regarding the intensity of the action’s effects. The plaintiffs also argued that BLM did not adequately address comments suggesting an alternative of surgical vasectomy. In addition, the plaintiffs claimed that BLM violated the Wild Free-Roaming Horses and Burros Act. The court ruled in favor of BLM on all claims, upholding its gelding plan.

Highly Uncertain Effects. The plaintiffs argued that BLM should have prepared an EIS because the effects of its gelding plan were highly uncertain. The court held that BLM reasonably concluded, based on available evidence, that there were no substantial questions as to whether gelding and releasing horses back into the wild would have a significant effect on the environment. The EA acknowledged that there were few studies on the behavior of geldings released into wild, but it predicted that effects would be insignificant based on existing research addressing the behavior of gelded domesticated and semi-feral horses, the natural social behavior of wild horses, and the effects of castration on other species. The record did not contain any evidence affirmatively showing that releasing geldings into the wild could affect herd behavior. The plaintiffs pointed to a National Academy of Sciences report that concluded the effects of releasing geldings could not be predicted; the court determined that this single report was not sufficient to demonstrate that the effects were highly uncertain. Furthermore, the court held that BLM was not required to wait to take action until it could complete an in-progress study on the effects of gelding wild horses.

Highly Controversial Effects. The court rejected the plaintiffs’ claim that BLM should have prepared an EIS because the effects of the gelding plan were highly controversial. The court explained that there was no controversy because the plaintiffs did not identify any evidence that contradicted the BLM’s findings. The court implied that expert opinions cited by the plaintiffs were not credible because they were not based on the experts’ own studies and they contained speculation unsupported by existing research.

Unique Characteristics. The court rejected the plaintiffs’ argument that BLM should have prepared an EIS because its action was in close proximity to cultural resources, i.e., wild horses. The court held that wild horses are not a cultural resource for purposes of NEPA. The court explained that the Wild Horses Act mandated how agencies should manage wild horses and how the environmental effects of those management actions should be evaluated; this specific statute took precedence over NEPA, which is a general law.

Precedent for Future Actions with Significant Effects. The court held that the gelding plan did not create a precedent for future actions with significant effects, which is another intensity factor that may require an EIS. The court explained that the gelding plan did not establish gelding as an accepted strategy for future population management programs, and it was not the first instance of releasing geldings into the wild.

Response to Comments. The court held that BLM’s failure to respond to comments suggesting surgical vasectomy as an alternative was not arbitrary or capricious. The court explained that evidence in the record, including a BLM guidebook, indicated that the effects of vasectomy and gelding were similarly uncertain. Although BLM did not explicitly respond to the comments about vasectomies, the court held this evidence supported BLM’s decision, and it could therefore discern the reasons for BLM’s rejection of vasectomy as an alternative.

Wild Horses Act. The court ruled that BLM complied with the Wild Horses Act’s requirements to consult with the National Academy of Sciences and other experts. The court held that BLM consulted with the National Academy of Sciences by considering its report on gelding and acknowledging the report’s uncertain conclusions in the EA. In addition, the court held, BLM consulted with scientific experts by accepting public comments, responding to the comments, and addressing their substantive concerns in the EA.

The Court of Appeal upheld a Coastal Commission cease-and-desist order requiring demolition of a seawall and payment of a $1 million penalty by homeowners who performed major reconstruction on their coastal home without notifying the Coastal Commission. 11 Lagunita, LLC v. California Coastal Commission, No. G058436 (4th Dist., Dec. 18, 2020).

In 2015, the Coastal Commission issued a Coastal Development Permit allowing reinforcement of an existing seawall at the base of a 1950’s era Laguna Beach home. The CDP contained a condition stating that the permit would expire and the seawall would have to be removed if the home were “redeveloped in a manner that constitutes new development.” It also provided that questions of intent or interpretation of any condition would be resolved by the Executive Director or the Commission.

In 2016, subsequent owners reinforced the seawall and commenced a significant remodel of the home. The project included demolition of all exterior walls down to the studs, removal and replacement of roofing materials, and reinforcement of the entire framing system. The owners obtained building permits from the city, but did not notify or seek permits from the Coastal Commission.

When Commission staff learned of the work, they sent an enforcement violation letter alleging that new development was occurring on the property in violation of the conditions of the 2015 CDP. The notice stated that the owners would need to apply to the Commission either to remove the seawall or to modify the permit, and asked that all work on the home cease until that occurred. After the owners refused to halt the project, staff initiated cease-and-desist proceedings before the full Commission. Following a lengthy public hearing, the Commission voted unanimously to issue a cease-and-desist order requiring the owners to remove the seawall and imposed a $1 million administrative penalty.

In the owners’ subsequent lawsuit, the Court of Appeal upheld the Coastal Commission’s decisions in all respects. The court found that testimony at the hearing and photographs of the remodel constituted substantial evidence that the owners violated the conditions of the 2015 CDP and supported “a finding that the residence was redeveloped in a manner that constitutes new development by any reasonable definition or understanding of those terms.” The court rejected the owners’ claim that because the city did not consider the work a “major remodel,” they reasonably proceeded with the work without notifying the Commission. The court noted that whether the work constituted a minor or major remodel under the city’s code was irrelevant to the determination of whether it met the definition of “new development” under the Coastal Act, which it plainly did.

The court also upheld the $1 million penalty. The Commission properly determined that the owners had violated the Coastal Act by performing the work without notice to the Commission and the now-unauthorized seawall was illegally limiting public access along the beachfront and causing erosion and other adverse impacts to coastal resources. The $1 million penalty was not unreasonable in light of the gravity of the violation, the cost of enforcement, the owners’ refusal to cease work when originally notified of the violation, and evidence that the owners deliberately sought to avoid Commission review based on the likelihood Commission staff would find it constituted unpermitted new development.

The U.S. Fish & Wildlife Service adopted a final regulation on December 18, 2020, to establish a process and the criteria for excluding areas from critical habitat designations under the Endangered Species Act. The FWS adopted the new rule to provide clarity on the exclusion process in light of agency experience and current practices, and to respond to the U.S. Supreme Court’s decision in Weyerhaeuser Co. v. U.S. Fish & Wildlife Service, 139 S. Ct. 361 (2018), which ruled that decisions not to grant an exclusion—like decisions to grant an exclusion—are subject to judicial review. The rule applies prospectively and only to critical habitat designations by the FWS; designations by the National Marine Fisheries Service will continue to rely on existing rules and policies. Our full analysis of the new regulation is available here.

The Ninth Circuit rejected a Fourth Amendment challenge to the City of San José’s Apartment Rent Ordinance, ruling that the plaintiff landlords had failed adequately to allege a reasonable expectation of privacy in the business records at issue. Hotop v. City of San Jose, No. 18-16995 (9th Cir., Dec. 7, 2020).

Plaintiffs challenged amendments to the City’s Apartment Rent Ordinance that required landlords to disclose certain information about rent stabilized units to the City, including a history of the rent charged for the unit, the amount charged as a security deposit, the names of tenants and any household services provided at the start of the tenancy. Plaintiffs claimed the challenged provisions violated their Fourth Amendment rights to be free from unreasonable searches and seizures. A Fourth Amendment search occurs when the government either physically intrudes upon “persons, houses, papers, [or] effects” or invades a person’s “reasonable expectation of privacy.”

The appellate court held that plaintiffs had not alleged any physical intrusion and had failed adequately to allege they had a reasonable expectation of privacy in the business records involved. Plaintiffs’ sole substantive allegation regarding privacy was that the information “constitute[d] plaintiffs’ private business records . . . not found in the public domain.” But the court pointed out that plaintiffs already provided very similar information to the City under other regulations. The complaint did not contain any factual allegations showing how the information implicated by the challenged disclosure requirements differed meaningfully from allegedly private information landlords already provide to the City in other contexts under regulations whose validity was not being challenged.

Because the complaint failed to contain plausible allegations of conduct constituting a search, plaintiffs’ Fourth Amendment claim failed.

The First District Court of Appeal held that Public Resources Code section 22531 unconstitutionally restricted judicial review of licensing decisions by the Energy Resources Conservation and Development Commission regarding thermal power plants over 50 megawatts. Communities for a Better Environment v. Energy Resources Conservation and Development Commission, No. A157299 (1st Dist., Dec. 8, 2020).

Section 22531(a) restricts the judicial review of decisions by the Energy Commission regarding the licensing of large thermal power plants to the California Supreme Court. Review is exclusive and no other courts may hear these challenges. Section 22531(b) limits the Supreme Court’s review to determining whether the Commission violated petitioner’s rights under the California or federal constitutions and bars courts from reviewing the Commission’s factual findings.

Two nonprofit environmental groups challenged the constitutionality of section 22531. Plaintiffs argued that (1) section 25531(a) unconstitutionally restricted the powers of the superior and appellate courts, and (2) section 25531(b) unconstitutionally restricted a court’s ability to review the facts in such challenges.

Section 25531(a)

The court of appeal held that section 25531(a) violated the California Constitution because it impermissibly divested lower courts of jurisdiction. The court relied on caselaw holding that the state Legislature may not divest courts of their original jurisdiction granted under Article VI, section 10 of the California Constitution unless another provision of the Constitution empowers the Legislature to do so. Article VI, section 10 vests original jurisdiction in the Supreme Court, courts of appeal and superior courts in matters involving extraordinary relief, including petitions for mandamus and prohibition.

The court rejected the Energy Commission’s argument that Article VI, section 10 was ambiguous as to which courts can hear extraordinary writ proceedings such as those concerning Energy Commission decisions. It also declined to consider the legislative history of Article VI, including a failed amendment that would have limited the Legislature’s ability to restrict review to the Supreme Court.

In addition, the court held that Article XII, section 5 of the Constitution, which gives the Legislature plenary power over the Public Utilities Commission (including the scope of judicial review of PUC decisions), did not authorize section 25531(a) in its current form. The previous version of section 25531(a) made Energy Commission decisions subject to judicial review “in the same manner as” PUC certificate decisions, which were only reviewable by the Supreme Court. The version under review did not equate Energy Commission review with PUC review and covered all Energy Commission licensing decisions, not just ones that required a PUC certificate. Thus, while the prior version of section 25531(a) limited judicial review in matters involving applications by regulated electric utilities that would also need PUC approval (of a certificate of public convenience and necessity), the current version allowed licensing decisions involving independent power producers without any additional PUC review. Article XII, section 5 of the Constitution did not authorize this impingement on court jurisdiction.

Section 25531(b)

The court also held that Section 25531(b) violated Article VI, section 1 of the Constitution because it prevented courts from reviewing evidence and effectively conferred judicial power on an administrative agency. Unlike the PUC, the Energy Commission was not created by the Constitution nor was it vested with independent judicial powers. Because section 25531(b) did not allow for the review of the Energy Commission’s factual findings by a court, it was unconstitutional.

 

 

An agency must prepare an environmental impact statement when it fails to address expert scientific evidence that undermines its conclusions about a project’s environmental effects. An agency also must prepare an EIS when there are substantial questions about whether a project will have a cumulatively significant impact. Bark v. U.S. Forest Service, 958 F.3d 865 (9th Cir. 2020).

The case involved a forest management project and timber sale in Mt. Hood National Forest. The primary purpose of the project was to reduce the risk of high-intensity wildfires and promote safe fire-suppression activities. The project would involve variable density thinning, which removes trees and reduces canopy cover.

To comply with NEPA, the Forest Service prepared an Environmental Assessment and issued a Finding of No Significant Impact. The plaintiffs argued that the Forest Service should have prepared an EIS instead, citing three of the ten factors listed in the NEPA regulations that can trigger the need for an EIS: The degree to which the environmental effects are likely to be highly controversial, the degree to which the possible environmental effects are highly uncertain or involve unique or unknown risks, and whether the action is related to other actions with individually insignificant but cumulatively significant impacts. The court ruled that all three of these factors mandated an EIS.

Controversial and Uncertain Effects

The court held that the project’s effects were both highly controversial and uncertain. The plaintiffs had submitted to the Forest Service numerous expert studies indicating that fuel reduction does not necessarily prevent large forest fires, and may even intensify a fire. The Forest Service did not meaningfully address these studies in the EA and FONSI. Thus, the evidence cited by the plaintiffs showed a substantial dispute about the effect of variable density thinning on fire suppression. This dispute warranted an EIS because it raised substantial questions about whether the project would have a significant environmental effect.

Cumulative Impacts

As a separate basis for its decision, the court ruled that an EIS was required because there were substantial questions about whether the project would have a cumulatively significant environmental impact. The EA included a list of other projects considered in its cumulative effects analysis but did not provide any quantified or detailed information about these other projects and their combined impacts. The analysis largely consisted of cursory and conclusory statements. The court held that this analysis of cumulative impacts was insufficient.

Post-Script: Effect of the New NEPA Regulations

The court’s rulings were based on the NEPA regulations in effect at the time the case was decided. The Council on Environmental Quality’s updated NEPA regulations took effect September 14, 2020 (40 C.F.R. parts 1500–1508). The new regulations do not include the list of factors that had been used to determine whether a project will have a significant effect on the environment. Under the new regulations, the assessment of whether a project’s impacts are significant, and thus whether to prepare an EIS, is to be based on “the potentially affected environment and degree of the effects of the action.” (40 C.F.R. § 1501.3(b)). It is not clear whether the courts will interpret and apply the new regulations (assuming they withstand pending legal challenges) to require the same degree of scrutiny of an agency decision to prepare a FONSI as the regulations they replace.

 

A court of appeal held that a plaintiff did not have public interest standing to sue Coastal Commissioners for violating disclosure obligations concerning ex parte communications because the lawsuit was not brought as a mandamus action. Spotlight on Coastal Corruption v. Kinsey, No. D074673 (4th Dist., Nov. 24, 2020).

The California Coastal Act allows members of the Coastal Commission to have ex parte communications with persons interested in Commission matters but requires Commissioners to publicly disclose such communications prior to or at the next Commission meeting. Violation of the disclosure requirement is punishable by a civil fine of up to $7,500, and a court may award attorneys’ fees to a plaintiff who successfully prosecutes a violation proceeding.

Plaintiff, a lawyer-created entity whose stated mission was to require Commissioners to “follow the Coastal Act with regard to ex parte communications” filed suit against five Commissioners alleging hundreds of violations of the disclosure requirements and seeking over $20 million in fines. Following a trial, the court found that approximately 10% of the alleged violations had occurred and imposed fines totaling $56,800. The trial court also found that Spotlight was the prevailing party in the litigation and awarded a base attorneys’ fee of $529,046 plus a multiplier, for a total attorneys’ fee award of $929,046.

The principal issue on appeal concerned plaintiff’s standing to assert its claims. Plaintiff contended that it had “public interest” standing, which allows a party lacking conventional standing to pursue a claim where the question is one of public right and the object of the mandamus action is to procure the enforcement of a public duty. The court rejected this argument on the ground that public interest standing is allowed only in the context of mandamus proceedings and plaintiff’s complaint did not contain a mandamus claim.

Although plaintiff’s complaint purported to seek a writ of mandate, the only places the word “mandate” or “mandamus” appeared were in the caption (or title) and the prayer for relief. The court pointed out that neither the caption nor the prayer determined the nature or legal effect of the claims. The body of plaintiff’s complaint lacked essential allegations for a writ of mandate, including factual allegations showing that plaintiff lacked any plain, speedy, and adequate remedy at law. “This case” the court said, “has always been all about money—civil fines and attorneys’ fees” and plaintiff lacked standing to seek those penalties and fees.

The court of appeal ordered the trial court to enter judgment in favor of the defendants and “to conduct further proceedings consistent with this opinion, including but not necessarily limited to a motion by Defendants for prevailing party attorneys’ fees and costs.”

A claim that a contract for construction of a school violated public bidding requirements did not become moot after construction was completed because effective relief — in the form of disgorgement of public funds paid to the contractor — was still available in plaintiff’s taxpayer action. Davis v. Fresno Unified School District (Davis 2), No. F079811 (1st Dist., Nov. 24, 2020).

Public school construction contracts generally must be competitively bid under public bidding laws. The Fresno Unified School District sought to rely on an exception for contracts under which the school district leases out district-owned property in return for the lessee’s agreement to construct a building for the use of the school district. Such a “lease-leaseback” arrangement, if properly structured, is exempt from public bidding laws. In Davis v. Fresno Unified School Dist., 237 Cal.App.4th 261 (2015) (Davis 1), the court held that the District’s lease-leaseback arrangement for construction of a $36 million middle school did not qualify for the exemption because it did not create a true lease or include any financing component, both of which were essential statutory predicates to an exemption from public bidding laws. The court declared the construction contract invalid and sent the case back to the trial court for further proceedings. Our report on the case is available here.

On remand, the District argued that the case had become moot because the school had already been built. The trial court agreed, reasoning that invalidating the contract was no longer effective relief because the contract had been fully performed. It also concluded that because the lawsuit had been brought as a validation action — i.e., one focusing on the validity of the contract rather than on the rights of the parties — disgorgement of monies paid to the contractor was not available relief because California law does not allow disgorgement in a validation proceeding.

The appellate court reversed. While acknowledging that plaintiff’s suit included a validation action, the court found that the suit also could fairly be read to include a taxpayer action challenging illegal expenditure of public funds. The court rejected the District’s argument that a validation action was the appropriate and exclusive method of challenging the validity of the school construction contract. The court reasoned that the validation statutes apply only to contracts “involving financing and financial obligations.” Here, the court pointed out, it had concluded in Davis 1 that the lease-leaseback agreement did not include any financing component, but rather contemplated that the District would pay for the school as it was completed. Indeed, that was a principal basis for the court’s conclusion that the lease-leaseback arrangement did not exempt the transaction from the public bidding laws.

Because the challenge was not subject to the validation statutes and because disgorgement of funds qualified as effective relief despite the completion of the school, the taxpayer’s action portion of the lawsuit was not moot and the trial court erred in dismissing the case on that ground.