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CEQA Updates

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

Posts from December, 2014

SCBA Annual Meeting

Monday, December 15th, 2014

Thomas Law Group attends SCBA Annual Meeting, Honoring Distinguished Attorney of the Year, Justice Arthur Scotland (ret.)



Sac Bar Luncheon

Ninth Circuit Rejects ESA and NEPA Challenges to Yellowstone Bison Management Plan

Thursday, December 11th, 2014

In Alliance for the Wild Rockies v. U.S. Department of Agriculture, 2014 U.S. App. LEXIS 21949, the Ninth Circuit Court of Appeals affirmed in part and reversed in part an environmental advocacy groups’ challenge to a management plan for bison herds in Yellowstone National Park. While the court reversed several procedural determinations of the trial court, the court upheld summary judgment on the Environmental Species Act (ESA) and National Environmental Protection Act (NEPA) claims and held the respondent federal agencies adequately analyzed the impacts of the Interagency Bison Management Plan on Yellowstone grizzly bears.

To minimize the risk of disease transfer between Yellowstone bison and cattle, various federal agencies developed a bison management plan that allowed the Montana Department of Livestock to use low-altitude helicopter flights each year to herd bison from grazing areas in low elevations back into Yellowstone. When the original plan was approved in 2000, the federal agencies completed an environmental impact statement (EIS) that concluded the impact of the management plan on Yellowstone grizzly bears would be insignificant. The federal agencies also completed a biological evaluation in accordance with Section 7 of the ESA that reached the same conclusion.

In 2012, the National Park Service recognized the helicopter flights were overlapping more than anticipated with the reemergence of Yellowstone grizzlies following their winter hibernation. A second biological evaluation was conducted, which also determined that any impact on Yellowstone grizzlies was insignificant.

The court first reversed the district and held that petitioner had standing to challenge the management plan under the ESA and NEPA. The court rejected the trial court’s reasoning that petitioner had no standing because the federal agencies did not have the authority to unilaterally stop the low-elevation helicopter flights. Instead, the remedy sought by petitioner under the ESA was a biological opinion and incidental take statement for the Yellowstone grizzlies. Under NEPA, petitioner sought a supplemental EIS. Because both of these remedies are within the authority of the federal agencies, the court held petitioner had standing.

Petitioner brought two challenges under the ESA—first that Section 7(a)(2) of the ESA required an updated biological opinion and second, that a take permit was required for the Yellowstone grizzly under Section 9. The court affirmed the trial court’s decision that the Section 7(a)(2) claim was moot because during the course of the litigation the National Park Service completed a biological opinion.

With respect to the Section 9 claim, the court first reversed the trial court’s decision that the claim was barred because the complaint was filed less than 60 days after petitioner gave the federal agencies notice of the lawsuit. Although Section 11(g)(1)(A) prohibits plaintiffs from filing an ESA claim less than 60 days after notifying the defendant, in the instant case, petitioner filed its initial complaint without the ESA claims and only added them after the 60 days was over. The court held the plain language of the statute did not prohibit filing a complaint and amending it to include ESA claims after the 60-day notification period.

Getting to the substance of the ESA and NEPA claims, the court upheld summary judgment on the section 9 claim and found the record lacked evidence to show the helicopter flights would result in a “take” of grizzly bears. Similarly, NEPA did not require the federal agencies to complete a supplemental EIS because the original EIS already analyzed the possibility of increased encounters between the helicopters and Yellowstone grizzlies.


The court emphasized the redressability requirement for standing does not require a court to determine whether the plaintiff will actually achieve the relief it desires. It is sufficient that the relief “could protect their concrete interests.” Here, even if an incidental take statement or biological opinion would result in greater protection of the Yellowstone grizzlies, petitioner had a right to adjudicate the claim.

Appellate Court Requires SANDAG Consider Executive Order Emissions Targets in Regional Transportation Plan

Wednesday, December 3rd, 2014

In a split decision in Cleveland National Forest Foundation v. San Diego Association of Governments, 2014 Cal. App. LEXIS 1070, a majority of the three-judge panel of the California Court of Appeal for the Fourth District affirmed a writ of mandate challenging the San Diego Association of Governments’ (SANDAG) environmental review of its 2050 Regional Transportation/Sustainable Communities Strategy (transportation plan).

The court’s decision turned on the significance of the 2005 executive order by Governor Arnold Schwarzenegger requiring statewide reduction of greenhouse gas emissions (GHG) to 2000 levels by 2010, to 1990 levels by 2020, and to 80 percent below 1990 by 2050. The legislature passed SB 375 in 2008, which directed California Air Resources Board (CARB) to develop regional GHG targets for automobiles and light trucks for 2020 and 2035. SB 375 also required each of California’s eighteen metropolitan planning agencies such as SANDAG to develop a sustainable communities strategy that provides a coordinated, long-term land use and transportation plan to meet the state’s emissions goals.

The programmatic environmental impact report (EIR) for SANDAG’s transportation plan analyzed the GHG impacts against three significance thresholds and considered the plan’s potential GHG impacts in 2020, 2035, and 2050. However, the court held SANDAG was required to analyze the transportation plan’s consistency with the 2005 executive order. The EIR did not reflect SANDAG’s reasonable good faith effort at full disclosure because it ignored the executive order’s role in shaping state climate policy.

The court rejected SANDAG’s argument that it was not required to analyze the executive order because there was no statute or regulation translating the order into scientifically-based emissions targets. Although SANDAG may not have known the specific targets and SANDAG had broad discretion to set select the criteria for determining the significance of the environmental impact, SANDAG knew the transportation plan would lead to an overall increase in GHG emission levels after 2020. Accordingly, SANDAG abused its discretion in not considering consistency with the governor’s executive order.

As to the adequacy of mitigation measures for GHG impacts, the court held that the EIR did not adequately mitigate the significant environmental impacts of the transportation plan. The court found that three feasible mitigation measures included in the EIR did not take concrete steps to reduce emissions and were already incorporated into the plan, which nullified any possible mitigating effect.

The court next considered the respondent’s cross appeals that the trial court declined to consider. The court held the EIR did not adequately consider a reasonable range of project alternatives. While the EIR included seven project alternatives, the alternatives all focused on congestion relief, which only provided a short-term reduction in GHG emissions. Instead, the court stated SANDAG should have considered alternatives for reducing total vehicle miles traveled.

The court also held the air quality analysis in the EIR was inadequate. Although SANDAG argued the air quality analysis was sufficient for a program level EIR, the court reasoned SANDAG could not provide any evidence demonstrating that further analysis of air quality impacts at this stage was infeasible.

Lastly, the court held the EIR did not adequately analyze the impact of the transportation plan on agriculture lands because the methodology in the EIR left too many gaps in the data and produced an unreliable estimate of the amount of existing farmland.

In a strongly-worded dissent, Justice Benke criticized the majority for interfering with the CEQA process by telling a lead agency what it must use as a threshold of significance. According to Justice Benke, the executive order does not unilaterally qualify as a threshold of significance. Justice Benke stated that the majority should have deferred to SANDAG in determining the significance thresholds and explained that “[t]here is no legal support for [the majority’s] action, which strips lead agencies of the discretion vested in them by the Legislature and reposes that discretion in the courts.”  Justice Benke was also critical of the majority’s conclusion that the alternatives analysis was inadequate because he believed the majority was “sub rosa directing SANDAG to shift the emphasis in its plan to mass transportation.”


Although the majority did not expressly hold that the GHG emissions targets in the governor’s 2005 executive order established thresholds of significance, the majority clearly stated the executive order formed the state’s “climate change policy.” Accordingly, lead agencies must be mindful to consider the 2005 executive order and its targets in both program- and project- level environmental impact reports.

Appellate Court Rejects Challenge to Use of Categorical Exemption for Conservation Easement over Hunting Club Property

Tuesday, December 2nd, 2014

In an unpublished opinion in Paulek v. Department of Fish & Game, 2014 Cal. App Unpub. LEXIS 7710, the Court of Appeal for the Fourth District affirmed the trial court’s denial of a writ of mandate challenging the application of categorical exemptions to the California Environmental Quality Act (CEQA) for the Department of Fish and Wildlife’s (formerly Department of Fish and Game) acquisition of a conservation easement over a portion of property held by a hunting club.

The easement limited development at the 92-acre Ramona Duck Club and incorporated two requirements from a previous conditional use permit (CUP): 1) a prohibition on lead shot, and 2) removal of an iron gate on the property. The Wildlife Conservation Board (Board) approved the easement and determined the easement was exempt from environmental review under CEQA Guidelines sections 15313 as an acquisition of land for fish and wildlife conservation purposes, and 15325 as a transfer of property rights for preservation of habitat.

The petitioner conceded the categorical exemptions applied, but argued the easement presented unusual circumstances that precluded reliance on the exemptions. The test for unusual circumstances requires a court to find that: 1) the project presents unusual circumstances, and 2) there is a reasonable possibility of a significant effect on the environment due to the unusual circumstances. While appellate courts are split on the application of the second prong—requiring either a fair argument that there may be a significant environmental impact or substantial evidence of no significant effect—the court followed precedent in the Fourth District and applied the fair argument test.

As to the first prong, the court rejected the petitioner’s argument that the use of lead shot, erection of an iron gate, and presence of rare and endangered species on the site presented unusual circumstances for a conservation easement. But even assuming the easement presented unusual circumstances, the court held the petitioner failed to make a fair argument of a reasonable possibility the easement would have a significant effect on the environment. The court explained that easements do not create any rights and as a result, cannot be the cause of any environmental impacts. Additionally, the easement in conjunction with the conditions in the CUP completely eliminated possible effects.

Finally, the court rejected petitioner’s argument that the Board improperly considered mitigation measures in finding the categorical exemptions applied. The court first found that the petitioner had failed to exhaust administrative remedies by not presenting this argument to the Board. The court further held that, even if the petitioner had presented this argument, the very purpose of the easement was to preserve wetlands and reduce the hunting club’s environmental impacts. Accordingly, the easement’s restrictions on the hunting club’s development on the property did not constitute mitigation measures.

Appellate Court Upholds CEQA Amendments Streamlining Approval of Sacramento Arena Project

Tuesday, December 2nd, 2014

In Saltonstall v. City of Sacramento, 2014 Cal. App. LEXIS 1053, the California Third District Court of Appeal affirmed the constitutionality of a legislative amendment to the California Environmental Quality Act (CEQA) that shortened the deadlines for review of a sports arena project in downtown Sacramento. The court also affirmed the trial court’s denial of a preliminary injunction seeking to stop construction of the Sacramento arena project.

The NBA required completion of a new arena by 2017 in order to keep the Kings basketball team in Sacramento. To meet the deadline, the legislature enacted Public Resources Code Section 21168.6.6, which modified CEQA review deadlines exclusively for the Sacramento arena project, but did not otherwise substantively modify CEQA.

Individuals opposed to the arena project sued, contending Section 21168.6.6 represented an unconstitutional intrusion of the legislative branch on the courts. Plaintiffs also requested a preliminary injunction, which was denied by the trial court. 

Although arguably moot pending resolution of the merits by the trial court, the court of appeal evaluated and upheld the constitutionality of Section 21168.6.6. 

Section 21168.6.6 established specific factors for a court to consider in determining whether to enjoin construction or operation of the downtown arena.  Under Section 21168.6.6, a court could not issue an injunction unless it found that construction or operation of the downtown arena presents an imminent threat to public health and safety, or would permanently and adversely impact unforeseen important historical, archaeological, or ecological resources. Thus, Section 21168.6.6 changed the general injunction standard for purposes of the Sacramento arena. However, the court held it was within the legislature’s authority and not a violation of separation of powers for the legislature to determine which interests should be weighed against the benefits of a new Sacramento arena.  Furthermore, the court explained environmental review under CEQA was a statutory right created by the legislature, so the legislature had the authority to amend or even eliminate the right altogether.

The court next rejected Plaintiffs’ argument that section 21168.6.6 imposed impossible timelines on the courts that prevented courts from effectively fulfilling their adjudicatory duties. Although section 21168.6.6 sets a 270-day time limit for judicial review, it only requires the challenges be resolved within that timeframe “to the extent feasible.” It does not impose any penalty for review that exceeds the 270 days and as a result, the court held the amendment did not “cross the line from reasonable regulation to a material impairment of the courts’ exercise of power[.]”

Finally, the court held the trial court did not err in denying Plaintiffs’ motion for a preliminary injunction. Plaintiffs failed to meet their burden of showing an imminent threat to public health and safety or to previously unknown historical, archaeological, or ecological values. Instead, Plaintiffs improperly argued a preliminary injunction would not cause harm to respondents.


Although the California Constitution includes an express separation of powers clause, the legislature does not violate the separation of powers when it amends a right that was created by statute and does not impair a core function of one of the branches of government. Accordingly, the legislature has the authority to establish the interests for courts to consider in deciding whether to issue an injunction pursuant to CEQA.

Section 21168.6.6 was established by Senate Bill (SB) 743.  SB 743 also included separate statutory revisions for expedited review of environmental leadership development projects certified by the Governor. (See section 21185.)  Section 21185, like section 21168.6.6, includes 270 days for judicial review.  However, unlike section 21168.6.6, section 21185 does not provide that the 270-day requirement is applicable “to the extent feasible.”  Thus, a petitioner may still argue – due to the absence of the feasibility language – that section 21185 is unconstitutional despite the court’s holding concerning section 21168.6.6.