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CEQA Updates

Keeping You Up-to-Date on the California Environmental Quality Act

Posts from June, 2012


Ninth Circuit Requires 2004 EIS to Include Higher Level of Analysis of Environmental Impacts on Fish, While Finding the Analysis of Environmental Impacts on Amphibians Sufficient

Thursday, June 28th, 2012

In January 2001, the United States Forest Service (Forest Service) issued an environmental impact statement (EIS) recommending amendments to the Forest Plans in the Sierras Madre Mountains (2001 EIS) to conserve and repair the riparian and amphibian habitat. By November 2001, the Forest Service reviewed the 2001 EIS and its proposed alternatives, and made several substantial changes, issuing a new EIS (2004 EIS) and adopting a new alternative (2004 Framework). The Pacific Rivers Council brought suit in Pacific Rivers Council v. United States Forest Service, 2012 U.S. App. LEXIS 12553, claiming that the Forest Service’s 2004 EIS violated the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA) by failing to take the requisite “hard look” at the environmental effects of the 2004 Framework on fish and amphibians. The United States Court of Appeals for the Ninth Circuit held that the 2004 EIS was deficient in its analysis on fish, however, sufficient in its analysis on amphibians.

With respect to the analysis of environmental consequences on fish, the Forest Service argued that the 2004 Framework was nothing more than an amendment to the Forest Plans, and thus it was not reasonably possible to provide an analysis of the environmental consequences on individual fish species. The Forest Service also claimed that the 2004 EIS satisfied the required “hard look” by incorporating the biological assessments (BA) by reference. The court disagreed with both arguments.

Responding to the Forest Service’s first argument, the court held that, based on the detailed analysis of the environmental effects on individual fish species in the 2001 EIS, along with the detailed analysis of environmental effects on individual species of mammals, birds, and amphibians in the 2004 EIS, a detailed analysis of fish in the 2004 EIS was in fact “reasonably possible.” The court explained that while the 2004 EIS was not required to have the same level of detail as the 2001 EIS, its complete lack of analysis, along with the absence of any explanation as to why no analysis was even included, was a violation of NEPA.

The court disagreed with the Forest Service’s second argument for three reasons. First, the court explained that depending on the nature of the information and its importance, it should either be in the text of the EIS, in an appendix to the EIS, or incorporated by reference. If the BAs were to serve as the requisite analysis, as argued by the Forest Service, then they should not have simply been referenced. Nor should they be included as an appendix. Based on their importance, the BAs should have been described and analyzed in the text. Next, the court held that the BAs could not even serve as the requisite “hard look” because there was no analysis of the degree or the manner by which the 2004 Framework may have affected the fish. Lastly, the court found that the BAs applied only to one group of fish species, as opposed to the three groups analyzed in the 2001 EIS. Based on those three findings, the court held that the 2004 EIS’s analysis of environmental consequences on fish was inadequate and in violation of NEPA.

With respect to amphibians, the court found the Forest Service’s 2004 EIS sufficient under NEPA. The 2004 EIS contained an extensive analysis of individual amphibians, identified changes between the 2001 and 2004 Frameworks that were likely to affect the species, and discussed mitigation strategies to minimize the environmental consequences of the 2004 Framework on amphibians. The court held that, since the Forest Service’s 2004 Framework stated that additional NEPA analysis would occur at the project-level, the current level of analysis was sufficient since site-specific projects are not yet at issue. Therefore, the court found the 2004 EIS’s analysis of environmental impacts on amphibians sufficient under NEPA.

Key Point:

The importance of information determines where the information must be presented in an EIS. The most important information must be analyzed in the text, less important information can be put in the appendix, and the least important information need only be referenced. Also, if an amendment to an alternative is significant, a new EIS must be prepared to take the requisite “hard look” at environmental consequences. A “hard look” involves considering all foreseeable direct and indirect impacts, as well as discussing the adverse impacts that do not improperly minimize negative side effects.

Written By: Tina Thomas, Amy Higuera and Holly McMannes (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Court Holds CARB’s Scoping Plan Complies with AB 32

Tuesday, June 26th, 2012

In Associated of Irritated Residents v. California Air Resources Board, (2012) ___ Cal.App.4th ___, the California Court of Appeal, First District, held that the California Air Resources Board (CARB) complied with the requirements of AB 32, the Global Warming Solutions Act, when it adopted its Climate Change Scoping Plan (Plan).

AB 32 requires, among other things, that CARB adopt a “scoping plan[,] as that term is understood by [CARB], for achieving the maximum technologically feasible and cost-effective reduction in greenhouse gas emissions from sources or categories of sources of greenhouse gases by 2020.” The Plan must identify and recommend emission reduction measures and alternatives, as well as evaluate total benefits to California’s economy, environment, and public health. The legislation also specifies that greenhouse gas emissions be reduced to 1990 levels by 2020, with the ultimate goal of reducing greenhouse gas emissions to 80% below 1990 levels by 2050. On May 7, 2009, CARB adopted a Plan designed to: (1) expand and strengthen existing energy efficiency programs and building and appliance standards, (2) achieve a statewide renewable energy mix of 33%, (3) implement a cap-and-trade program, (4) establish targets for transportation-related greenhouse gas emissions and incentives to meet those targets, (5) implement measures pursuant to existing state laws such as the low carbon fuel standard, and (6) create targeted fees to reduce greenhouse gas emissions.

The Association of Irritated Residents (AIR) believed CARB’s Plan did not satisfy AB 32’s requirements and initiated a lawsuit wherein the trial court ruled in favor of CARB. On appeal, the court reviewed CARB’s Plan for compliance with AB 32 under the abuse of discretion standard and addressed AIR’s arguments as follows.

The court first addressed AIR’s contention that AB 32’s Section 38561 requires CARB to adopt a Plan designed to achieve “maximum technologically feasible and cost effective reductions in greenhouse gas emissions” and that CARB failed to do so. AIR interpreted use of the word “maximum” to require CARB’s Plan to facilitate the greatest feasible greenhouse gas emissions reductions. In rejecting this contention, the court explained the Legislature intended that CARB create a Plan designed to achieve 1990 greenhouse gas emission levels by 2020 as a step toward achieving a longer-term climate goal of an 80% reduction below 1990 greenhouse gas emission levels by 2050. Thus, CARB’s Plan properly seeks to achieve 1990 greenhouse gas emission levels by 2020, and doing so is related to achieving the maximum reductions required by Section 38561. Moreover, in formulating the Plan, CARB extensively analyzed numerous measures to reduce greenhouse gas emissions as they related to achieving “maximum technologically feasible and cost effective reductions[.]” Through such analysis, CARB decided to adopt a cap-and-trade system, as well as numerous additional measures to achieve 1990 greenhouse gas emissions levels by 2020. Accordingly, CARB’s adoption of the Plan was supported by substantial evidence and could be neither arbitrary nor capricious with regard to the means chosen to satisfy AB 32’s goals.

Next, the court rejected AIR’s argument that CARB’s Plan failed to create and apply valid standard criteria for cost-effectiveness by which to compare alternative measures. As defined by AB 32’s Section 38505, cost-effectiveness is “the cost per unit of reduced emissions of greenhouse gasses adjusted for its global warming potential.” This definition does not provide criteria to assess cost effectiveness, nor does it define how costs are to be measured. Working with that definition, CARB considered four possible approaches for measuring cost-effectiveness, and ultimately adopted the “Cost of a Bundle of Strategies” approach. In the Plan, however, CARB explained in detail that a valid comparison of measures is not possible as limitations of modeling tools prevent a direct comparison of market-based measures (ie. cap-and-trade) with direct regulation measures (ie. technology forcing). As such, CARB did not directly compare certain measures in terms of cost-effectiveness because doing so would provide misleading results. The court was satisfied with CARB’s efforts to determine cost-effectiveness, and concluded those efforts were within the Legislature’s directive.

The last of AIR’s major claims was that the Plan did not do enough to reduce greenhouse gas emissions in the agricultural sector. Though the record indicated CARB extensively analyzed measures designed to reduce such emissions, the Plan only encourages capture of methane at dairies and plans to reassess the measure after five years. It goes on to explain the scientific knowledge and technology to reduce greenhouse gas emissions in the agriculture sector does not exist because 82% of the sector’s emissions result from complex biological processes. The court upheld this reasoning, finding that adopting premature mandates could be excessively costly and have environmental drawbacks.

Key Point:

CARB’s Plan is a first step toward achieving the maximum goal of reducing greenhouse gas emissions in California to 80% of the state’s 1990 emissions. The Plan reflects substantial technical analysis and scientific research with which the court was hesitant to interfere by substituting its own judgment over CARB’s.

Written By: Tina Thomas, Amy Higuera and Grant Taylor (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Speak Now or Forever Hold Your Peace: Petitioners Must Exhaust Their Administrative Remedies Prior to Challenging an Agency’s Decision That a Project is Categorically Exempt from CEQA

Friday, June 15th, 2012

In Tomlinson v. County of Alameda (Case No. S188161), the Supreme Court of California held that the exhaustion of administrative remedies provision as set forth in Public Resources Code section 21177, subdivision (e), applies to a public agency’s decision that a project is categorically exempt from CEQA. The Court’s eleven page decision put to rest the notion that a project opponent need not object to a categorical exemption during the administrative proceedings prior to filing a lawsuit to challenge the exemption.

Public Resources Code Section 21177, subdivision (a), provides that a CEQA challenge may be brought only if the petitioner’s alleged grounds for noncompliance with CEQA were presented to the public agency either during the public comment period or prior to the close of the public hearing on the project before the issuance of the notice of determination (NOD). Section 21177, subdivision (e), states that CEQA’s exhaustion requirement does not apply to CEQA challenges where there was no public hearing or other opportunity for members of the public to raise their objections to a proposed action prior to approval of a proposed project. In other words, the exhaustion requirement requires either a public comment period or an opportunity for public comment at public hearings before issuance of a NOD.

The Court’s holding is a significant victory for public agencies because it overturns the Court of Appeal’s decision (188 Cal.App.4th 1406) that Section 21177’s exhaustion requirement does not apply to a public agency’s decision that a project is categorically exempt from CEQA. The Court of Appeal’s decision relied heavily on Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, which held that section 21177’s public comment provision is inapplicable when a public agency determines a project is categorically exempt from CEQA because CEQA does not provide for a public comment period preceding an agency’s exemption determination. The Supreme Court disagreed, noting that in Azusa, the public agency did not hold any public hearings prior to determining the proposed project was exempt from CEQA; in contrast, the public agency did hold public hearings in Tomlinson and thereby provided petitioners the opportunity to object to the project prior to the agency’s determination that the project was exempt under CEQA’s categorical infill exemption (CEQA Guidelines section 15332).

The Supreme Court also disagreed with the Court of Appeal’s conclusion that the public hearing provision in section 21177, subdivision (a), does not apply when no NOD is filed. The Court found instead that where a NOD is filed, the public hearing provision requires a challenging party to raise its objections to the project at a public hearing before the NOD is filed. But if no NOD is filed, the public hearing provision nonetheless applies. In other words, where a party is given the opportunity to raise its objections at a public hearing before project approval, the challenging party is required to exhaust its administrative remedies by presenting its objections at the hearing. When a party fails to raise its objection, it is precluded from later raising that objection in court. An agency’s failure to file a NOD does not negate the exhaustion requirement; rather, as the Supreme Court explained: “what matters is the opportunity for comment at … public hearings, not the filing of a notice of determination.”

In light of the Court’s conclusion that the exhaustion doctrine applies to categorical exemptions, it declined to comment on petitioners’ remaining arguments that their objections at the public hearing were in fact sufficient to satisfy the exhaustion requirement and that the lead agency had misled them. The Court remanded the case to the Court of Appeal to consider what constitutes exhaustion.

Key Point:

Under the Court of Appeal’s ruling, a petitioner could refrain from objecting to an agency’s decision to approve a categorical exemption and later file a lawsuit challenging the exemption — a result that, at least according to some practitioners, undermined the very function of the exhaustion doctrine as a jurisdictional prerequisite to the courts. The Supreme Court ruling restores the exhaustion requirement for petitioners seeking to challenge a categorical exemption where the agency holds a public hearing and provides assurances to lead agencies that any parties opposed to CEQA exemptions must first exhaust their administrative remedies before filing a lawsuit.

Written By: Tina Thomas and Ashle Crocker
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Ninth Circuit Ruled in Favor of Tribe, Finding that the US Forest Service Violated the ESA by Giving Permission to Mine in a National Forest

Tuesday, June 12th, 2012

In Karuk Tribe of California v. United States Forest Service, 2012 U.S. App. LEXIS 11145, the Ninth Circuit Court of Appeals held that the Forest Service (Service) violated the Endangered Species Act (ESA) by failing to consult with the appropriate wildlife agencies before approving four notices of intent (NOI). The NOIs gave miners permission to conduct private mining activities, including suction dredging, in the Klamath National Forest. Under Section 7 of the ESA, an agency must consult with wildlife agencies for any “agency action” that “may affect” a listed species or its critical habitat. The court focused on two substantive questions: 1) whether Service’s approval of the NOIs constituted “agency action” within the meaning of Section 7; and 2) whether the approved mining activities “may affect” a listed species or its critical habitat. Answering both in the affirmative, the court remanded the case for entry of judgment in favor of the Karuk Tribe (Tribe).

Before considering the substantive questions, the court addressed the Service’s argument that, due to the statewide moratorium on suction dredge mining, the case was moot. However, the court explained that the moratorium did not prohibit other mining activities at issue in this case, and the moratorium was only temporary. Also, the court found that even though the NOIs the Tribe challenged had already expired, the case could still be heard under the “capable of repetition, yet evading review” exception to the mootness doctrine. Since the Tribe could not feasibly complete litigation before the NOIs expire, and since there is a reasonable expectation that the Service will engage in the challenged conduct again in the future, the court decided to hear the case and rule on its merits.

Turning to the first issue of “agency action,” the court explained that an agency must consult under Section 7 if two criteria are met. First, the agency must make an affirmative authorization. In past cases, the court found that the Service’s approval of an NOI was not merely advisory but rather a final agency action that “marks the consummation of the agency’s decision making process.” Hells Canyon Pres. Council v. U.S. Forest Serv., 595 F.3d 923, 930 (9th Cir. 2010). Based on that case law, along with the Service’s mining regulations and actions, the court determined that the Service had affirmatively authorized the private mining activities to proceed when it approved the four NOIs.

Second, the action must have “discretionary federal involvement or control.” Karuk Tribe of Cal., 2012 U.S. App. LEXIS 11145 at 42. The Service’s actions meet that criterion if the Service could influence a private activity to help a listed species. The court found three ways in which the Service exercised discretion in deciding whether to approve the NOIs: 1) by formulating criteria to protect the Coho salmon; 2) by refusing to approve a NOI because it had insufficient protection of the salmon habitat; 3) by applying different criteria for different areas of the Klamath National Forest. These three examples, along with established case law, supported the court’s finding that the Service’s actions of approving the four NOIs constituted an affirmative, discretionary decision to allow private mining activities to proceed. The Service therefore had a duty to discuss matters with the appropriate wildlife agencies.

The court next found that the approved mining activities “may affect” a listed species and its critical habitat. The court first looked at the record and found ample evidence that the mining activities, especially suction dredge mining, “may affect” Coho salmon. Along with the record, the court explained that by definition, mining activities that require a NOI “might cause” disturbance of surface resources, thus they “may affect” the environment and listed species. The court concluded that because the mining activities clearly “may affect” a listed species and its critical habitat, and because the Service’s actions constituted “agency action,” the Service had a duty to consult under Section 7 before approving the four NOIs. The Service’s failure to do so constituted a violation of the ESA.

Key Point:

This case confirms that, before an agency can conduct an “agency action” that “may affect” a listed species or its critical habitat, it must consult with the appropriate wildlife agencies. Agencies that make an affirmative authorization while retaining discretionary control and also have the capacity to benefit listed species must discuss matters further with expert wildlife agencies.

Written By: Tina Thomas, Ashle Crocker and Holly McMannes (law clerk)___________
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

CSU Board of Trustees’ EIR for Campus Expansion was Held as Sufficient, with the Exception of its Analysis on Impacts to Surrounding Parklands

Tuesday, June 12th, 2012

In an unpublished decision, City of Hayward v. Board of Trustees of the California State University, 2012 Cal. App. Unpub. LEXIS 4097, the Board of Trustees of the California State University (Trustees) wished to expand its Hayward campus in order to meet its assigned enrollment ceiling.  In 2009, the Trustees approved a master plan to guide campus development for the next 20-30 years.  The City of Hayward (City) sued claiming the Trustees’ environmental impact report (EIR) failed to adequately analyze impacts on fire protection and public safety, traffic and parking, air quality, and parklands.  The California First Appellate District reversed the trial court’s holding and found that the Trustees’ EIR was adequate, with the exception of parklands.  The court therefore modified the writ of mandate ordering the Trustees to revise the analysis of potential environmental impacts to surrounding parklands.

Based on the Trustees’ analysis on fire protection and public services, the court came to four conclusions.  First, the court found substantial evidence to support the Trustees’ conclusion that additional and expanded fire facilities will not have a significant environmental impact.  Second, the court held that the Trustees did not have to provide mitigation measures for the new fire facilities since they concluded that more fire protection services would not result in significant environmental impacts.  Third, the court stated that the Trustees do not need to fund the expansion of the fire department services but rather the city has a constitutional duty to provide such services.  Lastly, the court found that the EIR sufficiently analyzed the impact of the campus expansion on the city’s public services and properly came to the conclusion that the “cumulative effect would be less than significant.”

The court next addressed the issue of traffic and parking.  The court first held that the Trustees’ analysis of potential sites for faculty housing was sufficient.  Since the Trustees prepared a program EIR as opposed to a project EIR, they properly deferred site-specific analysis of possible environmental effects of building faculty housing until a later time.  The court next examined the Trustees’ mitigation measures.  With the main goal of shifting commuters out of single-occupant cars and into carpools, transit, biking, and walking, the court found “no deficiency” in the way the EIR considered impacts of the master plan on parking and traffic, incorporated mitigation measures, and reached the conclusion that some environmental impacts are unavoidable.  Lastly, the City claimed that the Trustees’ EIR failed to include a “mitigation measure … providing for the University to pay its fair share of traffic improvements.”  (City of Hayward, 2012 Cal. App. Unpub. LEXIS 4097 at 60.)  Since the City did not raise this issue in its opening brief, the court declined to address it and held it as waived.

Pertaining to impacts on air quality, the court supported the Trustees’ EIR.  While the EIR concluded that the master plan would produce long-term emissions of pollutants, it presented transportation mitigation measures that would reduce some, though not all, emissions to a less than significant level.  The court also explained that since neither the trial court nor the City suggested further mitigation measures the Trustees should consider, then that portion of the Trustees’ EIR was sufficient and did not need to be reexamined.

Impacts on parklands was the one area with which the court agreed with the City and the lower court.  The court explained that the Trustees’ reliance on “long-standing use patterns” of the students as opposed to factual evidence was “nominal” and did not prove a meaningful enough  analysis to inform or analyze the extent of the impact the master plan was likely to have on surrounding parks.  Therefore, the court ordered the Trustees to reanalyze those impacts prior to certifying a revised EIR.

Written By: Tina Thomas, Ashle Crocker and Holly McMannes (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Attorney General Releases Report Interpreting CEQA to Require Consideration of Environmental Justice Issues at the Local and Regional Levels

Tuesday, June 12th, 2012

On May 8, 2012, the California Attorney General’s office released a report entitled  “Environmental Justice at the Local and Regional Level – Legal Background” (Report) which interprets existing law to impose environmental justice obligations that local governments must consider when approving specific projects and planning for future development.

“Environmental justice” is defined in the Government Code as “the fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation, and enforcement of environmental laws, regulations, and policies.”  (Gov. Code, § 65040.12, subd. (e).)  The Report defines “fairness” in this context to mean that “the benefits of a healthy environment should be available to everyone, and the burdens of pollution should not be focused on sensitive populations or on communities that already are experiencing its adverse effects.”

The Report first asserts that Government Code section 11135, which prohibits discrimination by any state agency, requires local governments to consider the same issues of “fairness” in the planning context.  The Report notes that, if a local government is found to have violated Government Code section 11135 which, according to the Report, may occur if environmental justice issues are not considered, then state funding can be “curtailed” and a civil action may be brought.

The Report then interprets the California Environmental Quality Act (CEQA) and its implementing Guidelines to require lead agencies to consider the public health burdens of a project as they relate to environmental justice for certain communities.    While the Report acknowledges that there is no mention of “environmental justice” within CEQA, the Report notes that CEQA’s main purpose is to evaluate whether a project may have a significant effect on the physical environment, and asserts that “human beings are an integral part of the environment.”

The Report provides several examples of specific provisions of CEQA and its Guidelines that the Attorney General asserts require local lead agencies to consider how the environmental and public health burdens of a project might specially affect certain communities.  Specifically, the Report cites the requirement that the environmental setting of a project be considered and notes that a project that is ordinarily insignificant in one setting may be significant in another.  The Report also cites the requirement that agencies assess the cumulative impacts of a project by examining a project’s effects in connection with the effects of past, current, and probable future projects, along with effects on nearby communities.  In addition, the Report cites the provisions of CEQA that recognize the potential relevance of social and economic impacts, even though the main focus of CEQA is on environmental impacts.

Under CEQA, agencies are prohibited from approving projects with significant environmental effects if there are feasible alternatives or mitigation measures that would lessen or avoid those effects.  The Report adds that, “where a local agency has determined that a project may cause significant impacts to a particular community or sensitive subgroup, the alternative and mitigation analyses should address ways to reduce or eliminate the project’s impacts to that community or subgroup.”

Finally, the Report acknowledges that local agencies have discretion to approve a project, even one with unavoidable environmental impacts.  However, the Report asserts that, if the benefits of a project will be enjoyed widely, but the environmental burdens of a project will be felt particularly by the neighboring communities, then that balance the agency has struck should be set out plainly in the statement of overriding considerations.

A copy of the Report can be found at:

http://oag.ca.gov/sites/all/files/pdfs/environment/ej_fact_sheet_final_050712.pdf

Written By: Tina Thomas, Amy Higuera and Holly McMannes (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Governor Brown Seeks to Insulate California High Speed Rail From CEQA Challenges

Wednesday, June 6th, 2012

Governor Brown’s office has proposed new legislation that would modify the California Environmental Quality Act (CEQA) to limit the circumstances under which a court could issue an injunction or other stop work order on the California High Speed Rail (HSR) project pending the outcome of CEQA litigation.  The proposed legislation aims to protect the HSR project from a halt in construction that could result from recently filed CEQA litigation, including lawsuits filed by the City of Chowchilla and the County of Madera and Madera and Merced County Farm Bureaus, challenging the Environmental Impact Report (EIR) for the portion of the proposed HSR line that will traverse through the Central Valley.  The Legislature will likely consider the proposal in the next month.

For more information on the Governor’s proposal visit: http://www.sacbee.com/2012/06/02/4532775/jerry-brown-moves-to-protect-high.html

Written By: Tina Thomas, Amy Higuera and Grant Taylor (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Court Denies Attorney’s Fees Where Successful Petitioner Does Not Confer a Significant Benefit to Public and Discharges Writ of Mandate After Compliance

Wednesday, June 6th, 2012

In an unpublished opinion, California Oak Foundation v. County of Tehama (2012) 2012 Cal. App. Unpub. Lexis 3970, the California Third District Court of Appeal affirmed a decision denying petitioner’s request for attorney’s fees on the basis that their successful challenge to a golf course community project, which Tehama County approved in 2006, did not significantly benefit the general public. The court also affirmed the order to discharge a writ of mandate requiring Tehama County to consider certain evidence as it related to I-5 mitigation fees to be imposed on the project.

The court had previously issued a writ of mandate requiring the county to comply with CEQA by considering evidence brought forth by the county’s economic consultant pertaining to I-5 traffic mitigation fees. In 2010, the county reapproved the project without any changes, on the apparent basis that the decline in home prices between 2006 and 2010 made higher fees to mitigate I-5 traffic infeasible.

After the county reapproved the project, petitioner brought suit seeking attorney’s fees incurred during the first case, and also arguing that the trial court improperly discharged the writ because the county employed flawed reasoning when it considered I-5 mitigation fees. The court denied petitioner’s attorney’s fees request. Because the county reapproved the project without any changes, petitioner’s lawsuit conferred no significant benefit to the general public. Because no significant benefit to the general public resulted from their lawsuit, petitioner failed to satisfy a requirement for attorney’s fees to be awarded in such a case. Next, the court held the county acted reasonably when it concluded the lower home prices in 2010 made higher I-5 traffic mitigation fees infeasible. Because the county articulated reasonable grounds for its conclusion that higher I-5 mitigation fees were infeasible, the county complied with CEQA and the writ of mandate was properly discharged.

Written By: Tina Thomas, Chris Butcher and Grant Taylor (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.