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CEQA Updates

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

Scope of CEQA Posts

Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal. 5th 1171

Thursday, November 21st, 2019

Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal. 5th 1171

In 2014, the City of San Diego adopted an ordinance amending its zoning code to allow for medical marijuana dispensaries. The ordinance capped the number of dispensaries allowed in each city council district, placed restrictions on where the dispensaries could be located, and required conditional use permits for all dispensaries. The City found that adopting the ordinance was not a project, and therefore, was not subject to CEQA. The findings stated that the ordinance did not have the potential to cause environmental impacts, and noted that future dispensaries would require a discretionary permit and environmental review.

The Union of Medical Marijuana Patients (UMMP) filed a petition, arguing the ordinance should have been considered a project subject to environmental review. The trial court disagreed and denied the petition. On appeal, UMMP reiterated their argument and asserted that section 21080 requires zoning amendments be considered projects under CEQA as a matter of law. The appellate court disagreed, holding that the statute did not require such a finding; and rejected the argument that the City should have found the ordinance to be a project. Thereafter, the California Supreme Court accepted the case for review.

The Court first addressed the question of whether an agency amendment of a zoning ordinance constitutes a project as a matter of law. The Court reiterated the significance of California Public Resources Code section 21065, which defines a ‘project’ under CEQA. Under section 21065, an activity is a project if it “may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment” and is subject to agency control in some way (e.g., undertaken by the agency itself, funded by the agency, or subject to licensing or permitting by the agency).

UUMP relied on section 21080’s definition of statutory exemptions from CEQA, which states, “[e]xcept as otherwise provided, [CEQA] shall apply to discretionary projects proposed to be carried out or approved by public agencies, including, but not limited to, the enactment and amendment of zoning ordinances … unless the project is exempt from this division.” UMMP argued that section 21080’s statutory reference to zoning amendments means that such ordinances, as a matter of law, are projects under CEQA. This argument was supported by Rominger v. County of Colusa (2014) 229 Cal.App.4th 690, a case concerning the approval of a tentative subdivision map (which is also listed in section 21080).

The Supreme Court disagreed and disapproved the ruling in Rominger, holding that section 21080 did not classify all zoning code amendments as projects. Rather, the Court evaluated the plain language of 21080 and 21065 and concluded that, when read together, the language unambiguously allows for zoning amendments that do not meet the definition of a ‘project’ to be deemed ‘not a project’. These zoning code amendments would fall outside of CEQA’s obligations. The Court supported this conclusion by noting the needless costs involved in subjecting an ordinance which did not have the potential to impact the environment to additional environmental review.

In other words, the language of 21080, which lists various types of approvals, does not create a list of projects mandating CEQA review. Rather, 21080 must be read together with 21065 and the listed activities in 21080 must have the potential to result in a direct or indirect physical change in the environment, as described in 21065.

The Court addressed whether the City had properly concluded the zoning ordinance was not a project. The Court’s analysis largely centered on Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372. Muzzy Ranch involved two issues: whether approval of a transportation and land use plan was a project, and if so, whether the project was exempt under the commonsense exemption. The commonsense exemption states that a project is exempt, “[w]here it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.” (CEQA Guidelines, §15061(b)(3).) Despite similar language between the commonsense exemption and section 21065’s definition of a ‘project’, the Court in Muzzy Ranch held that the approval was a project, yet was exempt from CEQA under the commonsense exemption.

Here, the Court underscored its decision in Muzzy, finding that the initial determination of whether an action constitutes a project is a legal inquiry to determine if the “activity’s potential for causing environmental change is sufficient to justify the further inquiry into its actual effects”. The Court concluded that the somewhat “abstract” nature of defining ‘project’ was appropriate to the “preliminary role” in “CEQA’s three-tiered decision tree”. The Court concluded that prior to the ordinance, dispensaries were not allowed, but illegal businesses did operate within the City. New retail and closure of prior illegal dispensaries creating different patterns of traffic are sufficiently plausible impacts to find the ordinance may result in a “reasonably foreseeable indirect physical change in the environment.” But whether the ordinance will result in “actual” impacts on the environment is a determination best left to later tiers in the CEQA decision tree.

While the Court acknowledged certain impacts alleged by UMMP could turn out to be minimal or nonexistent, it held that both the City and Court of Appeal improperly attempted an evaluation of the actual impacts. The Court held that there were potential impacts of the ordinance, such as construction related to new dispensaries and changes in traffic patterns. On that basis, the Court found that the ordinance was a project.

Lake Norconian Club Foundation v. Department of Corrections & Rehabilitation, 39 Cal. App. 5th 1044

Thursday, November 21st, 2019

Lake Norconian Club Foundation v. Department of Corrections & Rehabilitation, 39 Cal. App. 5th 1044

The California Department of Corrections (Department) operates a prison next to the historic Lake Norconian Club, a former resort and hotel constructed in the 1920’s. The Department used the building as a drug rehabilitation facility, and later, as prison administrative offices. In 2012, the legislature decided to close the prison, and the Department prepared an EIR for the planned closure. The EIR stated that the Department could not allocate necessary funds to maintain the building due to the Department’s other maintenance priorities. The legislature later changed its mind, allowing the Department to continue operating the prison, however, the Department decided that it would not maintain the former hotel.

Beginning in 2006, Lake Norconian Club Foundation (Petitioners) repeatedly advocated for the Department to maintain the hotel. Petitioners sued in 2014, alleging that the Department’s willful and ongoing failure to maintain the hotel was a continuous discretionary action with significant environmental impacts, and therefore, was a project under CEQA for which no environmental review was conducted. The trial court agreed with Petitioners and found the Department’s actions and omissions constituted a project under CEQA, but nevertheless entered judgment in favor of the Department. The trial court concluded that the statute of limitation began to run when the 2013 EIR was certified, rendering the 2014 petition untimely.

Petitioners appealed the judgment, and the Department cross-appealed, arguing that its inaction was not a project under CEQA.

No prior California case has addressed whether an agency’s failure to act could be considered a project. In federal NEPA cases, courts have often held that inaction does not constitute ‘action’ (the NEPA term analogous to a ‘project’ under CEQA). NEPA guidelines state that inaction may constitute action where the omission would be judicially reviewable under the APA, and case law has held that inaction in the face of a mandatory duty to act creates an omission.

The Court noted that CEQA contains no such guideline and Petitioners failed to identify a statute which created a duty for the Department to maintain the hotel. The Court stated that CEQA defines “project” by describing activities which constitute projects—failure to act is not a project, even if the inactivity would lead to environmental consequences. The Court noted the practical unworkability of deeming inactivity a project, particularly when attempting to determine when the ‘inactivity project’ commences or receives approval for purposes of CEQA’s statute of limitations.

Absent any statutory duty, the Court held that the Department’s failure to act could not be deemed a project, nor challenged for noncompliance with CEQA; and that inaction is not a project under CEQA, at least where there is no affirmative duty to act.

First District Finds Design Review Does Not Make Entire Project Subject to Discretionary Review

Tuesday, January 15th, 2019

In McCorkle Eastside Neighborhood Group v. City of St. Helena (2018) 2018 Cal.App.LEXIS 1233, the First District Court of Appeal held that the City’s design review process did not require the separate invocation of CEQA; the City complied with CEQA where it was at its discretion to find the express content of the design review ordinance limited its review.

The City of St. Helena (City) approved a demolition permit and design review to demolish a single-family home and develop an eight-unit multifamily residential building (Project). The site’s zoning designation of “high density residential” established that multifamily housing was a permitted use, subject to design review. The Planning Commission found that the Project was a categorically-exempt infill project (CEQA Guidelines, § 15332) and approved it.  McCorkle Eastside Neighborhood Group (McCorkle) appealed the decision to the City Council.

The City Council found that the Project met the design standards under the applicable zoning designation and approved the Project. In doing so, the Council found that the Project met all 14 required design review factors and that the design review ordinance prevents the City from disapproving the Project for any non-design-related reasons. The Council also found that a Class 32 infill exemption to CEQA applied and the Project would not “result in any significant effects relating to traffic, noise, air quality or water quality.” The City’s resolution specifically stated that the exemption finding “was consistent with the City’s limited discretion to consider or address environmental impacts [where] ‘Multi-family residential land uses are permitted by right in the [zoning] District.’” The City thus concluded that “in the context of this design review approval, the [City’s] authority/discretion is limited to (design related) concerns stemming from the only discretionary actions required for project approval.” McCorkle filed suit.

McCorkle alleged that the City was incorrect to find that its design review process did not require the separate invocation of CEQA. Further, McCorkle alleged that the City improperly found the Project a categorically-exempt infill project and abused its discretion for not requiring the preparation of an EIR. McCorkle also alleged that the City Council improperly delegated CEQA authority to the Planning Commission. The trial court denied the petition for writ of mandate. McCorkle timely appealed.

The Appellate Court first held that there was no improper delegation of the City and City Council’s authority under CEQA. The Planning Commission was the initial reviewing agency, but that did not mean that the City Council had abdicated its project review duties to the Planning Commission. Instead, following an appeal of the Planning Commission’s decision, the City Council took independent action in finding the Project exempt and approving the Project. There was no improper delegation.

The Court then disagreed with McCorkle’s claim that, because the City had discretion to conduct design review, the entire Project was discretionary and subject to CEQA. McCorkle relied on the general rule that, where a project involves both discretionary and ministerial approvals, the entire project is deemed discretionary.  However, the Court concluded that the rule “applies only when the discretionary component of the project gives the agency the authority to mitigate environmental impacts.” Here, the design review process allowed the City to change the appearance of the Project, but the general plan and design review standards did not provide a means for the City to mitigate impacts to parking, traffic, safety and soil remediation. Thus, the City did not abuse its discretion in finding that the design review ordinance did not mandate that the City consider disapproving the Project for non-design related matters.

Echoing the holding in Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, the Court found that the City was not, pursuant to general law, required to have a design review ordinance. Where the City chose to impose an additional level of review, “it is for the City to determine the scope that such review will entail.” Thus, the City’s understanding of its own ordinance was afforded great deference as “the [CEQA] Guidelines recognize that the application of CEQA to a local ordinance is dependent upon the scope and interpretation of the local ordinance, rather than vice versa.” The Court found this explanation in line with CEQA Guidelines section 15040, which expressly limits an agency’s authority under CEQA to only powers expressly or impliedly granted to the agency by other laws. 

After finding that the City was not required to mitigate non-design related environmental impacts, the Court found it unnecessary to evaluate the City’s reliance on the CEQA exemption for infill projects. Because the Project was consistent with the general plan and the City addressed Appellants’ argument to the contrary “in great detail,” there was no need for the Court to continue its analysis.

The Court affirmed the trial court’s holding.

Key Point:

A municipality’s design review process does not always require the separate invocation of CEQA.

Note: This case was originally unpublished. January 11, 2019 the court ordered its publication on the request of the California Building Industry Association, California Infill Builders Federation, Treasury Wine Estates Americas LLC, and the California Chapter of the American Planning Association.


Thursday, September 29th, 2016

The Bay Area Air Quality Management District’s (BAAQMD) “CEQA Air Quality Guidelines” have been the source of litigation since they were first adopted in 2010. Most recently, courts have grappled with certain thresholds for assessing the health risks of siting new sensitive receptors near existing sources of toxic air contaminants, often referred to as the “Receptor Thresholds.”

In California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, the Supreme Court held that the scope of CEQA did not require lead agencies to consider the effect of the existing environment on a future users of a project unless the project will exacerbate those existing conditions. See The First Appellate District was tasked with determining on remand how that holding affected the Receptor Thresholds adopted by BAAQMD.

In California Building Industry Assn. v. Bay Area Air Quality Management Dist., 2016 Cal. App. LEXIS 758, the appellate court considered BAAQMD’s argument that approval of the receptor thresholds did not need to be set aside because there were possible valid uses.  These uses included: (1) voluntary applications by a lead agency; (2) the determination of whether a project will exacerbate existing conditions; (3) the assessment of the health risks to students and staff at a proposed school site; and (4) the evaluation of whether a housing project is exempt from CEQA.

The Court agreed with BAAQMD, but cautioned that “any effort by an agency to require an EIR, mitigating measures, or other CEQA review under the Receptor Thresholds when one is not authorized would be subject to a strong legal challenge.” The Court remanded the case to the trial court with instructions to issue an order invalidating the portions of the BAAQMD Guidelines that suggested that lead agencies should routinely assess the effect of existing environmental considerations on future users or occupants of a project.

BAAQMD subsequently filed a petition for rehearing and argued that writ relief was inappropriate because the Guidelines are a nonbinding, advisory document and any review was premature because there was no specific controversy regarding an application of the Guidelines. (See California Building Industry Assn. v. Bay Area Air Quality Management Dist., 2016 Cal. App. LEXIS 752.) The Court disagreed and found BAAQMD’s Guidelines to be akin to the guidelines at issue in Pacific Legal Foundation v. California Coastal Commission (1982) 33 Cal.3d 158. They were not “interim steps in a larger review process,” where a court may decline to use the remedy of mandamus. Therefore, the Court denied the petition for rehearing.


Wednesday, June 22nd, 2016

On June 21, 2016, the First Appellate District partially published its opinion for Ukiah Citizens for Safety First v. City of Ukiah (Case No. A145581). The case involved a citizen group’s petition for writ of mandate challenging the certification of an environmental impact report (EIR) by the City of Ukiah (City) for the construction of a Costco Wholesale Corporation retail store and gas station (Project).

In the published portion of the opinion, the Court addressed alleged deficiencies in the Project EIR’s energy impacts analysis. Petitioners asserted that the EIR “fails to include adequate information regarding the project’s energy use and does not comply with appendix F of the CEQA Guidelines.” Specifically, Petitioners alleged that the EIR failed to calculate the energy use attributable to vehicle trips generated by the Project and failed to calculate the operational and construction energy use of the project.

In arriving to its decision, the court relied on the standards set forth by the Third Appellate District in California Clean Energy Committee v. City of Woodland (2014) 225 Cal.App.4th 173 (CCEC), a decision that was filed after the EIR was certified and the petition was filed. Consistent with CCEC, the court found that the EIR failed to calculate the energy impacts of trips generated by the Project. The court also found that the EIR improperly relied on compliance with the California Building Code to mitigate operational and construction energy impacts, without further discussion of the CEQA Guidelines Appendix F criteria. Finally, the court found that the City inappropriately relied on mitigation measures designed to reduce greenhouse gas emissions.

While this litigation was pending and recognizing the deficiencies in its EIR based on the principles set forth in the CCEC opinion, the City adopted an addendum to the EIR. The addendum clarified the EIR’s findings on energy impacts, but did not alter the conclusions reached in the EIR. While the trial court considered the addendum over Petitioners’ objections, the appellate court found this to be an inappropriate expansion of the administrative record. The court explained that the administrative record before a reviewing court should generally only consist of evidence that was before the decision-making body when it rendered its decision. Thus, the court did not address whether the language in the addendum cured the EIR’s defects. Moreover, the court found that the City’s subsequent addendum did not cure the prior approval of an inadequate EIR because the preparation of an addendum assumes that the EIR was properly certified. Because the EIR, as certified, inadequately addressed the energy impacts of the project, the court held that recirculation and consideration of public comments concerning the energy analysis will be necessary before the EIR can be recertified.

In the unpublished portion of the opinion, the court rejected Petitioners’ remaining contentions regarding: (1) the EIR’s analysis of transportation and traffic impacts; (3) the EIR’s analysis of noise impacts; and (3) the Project’s consistency with applicable zoning requirements. The court affirmed the trial court’s decision on the remaining contentions because there was sufficient evidence in the record to support the City’s conclusions.

Key Point: Addendums can only be used to clarify, amplify, or make insignificant modifications to an adequate EIR.


Friday, April 8th, 2016

Recently, the California Court of Appeals issued two CEQA decisions concerning marijuana dispensary ordinances, specifically addressing whether the ordinances constitute projects under CEQA, and if so, whether the ordinances fall under the common sense exemption.

First, in a published opinion, Union of Medical Marijuana Patients, Inc. v. City of Upland, 2016 Cal. App. LEXIS 223, the Fourth Appellate District upheld the City’s determination that a 2013 ordinance prohibiting mobile medical marijuana dispensaries was not a project under CEQA. The City had previously adopted an ordinance in 2007 that prohibited both fixed and mobile medical marijuana dispensaries. The City’s use of a negative declaration for the 2007 ordinance was not challenged.  

The Union of Medical Marijuana Patients (UMMP), a non-profit civil rights organization advocating the rights of medical cannabis patients, argued that the 2013 ordinance could have new environmental impacts that should be analyzed under CEQA. The court rejected this argument, finding that the 2013 ordinance merely restates the 2007 ordinance and thus does not constitute a project that is subject to CEQA.

Even if the ordinance did not merely restate existing law, the court still would have found that the ordinance did not constitute a project because the alleged impacts from the 2013 ordinance were too speculative.

Because the court concluded that the 2013 ordinance was not a project, it did not address the City’s claim that the ordinance was exempt under the common sense exemption.

The use of the common sense exemption was addressed in the unpublished opinion T.C. v. County of Kern, 2016 Cal. App. Unpub. LEXIS 2333 (TC). In TC, the Fifth Appellate District held an initiative measure (Measure G) placed on the ballot by Kern County, which authorized medical marijuana dispensaries but restricted them to areas zoned for industrial use, was not exempt from CEQA review pursuant to the common sense exemption.

Measure G went to the voters on June 5, 2012 and was approved with 69 percent of the vote. A lawsuit was subsequently filed alleging that the County failed to comply with CEQA.

On appeal, the court held that Measure G did not qualify for CEQA’s common sense exemption because the County’s own findings concerning Measure G explicitly identified “serious secondary effects,” including increased traffic, noise, and litter, that are caused by unregulated dispensaries. The court found that Measure G could force dispensaries currently located in non-industrial zones to relocate to unregulated areas outside of the County, causing these environmental impacts to occur.

The court also rejected contentions that Measure G qualified for two categorical exemptions set forth in sections 15308 (Class 8) and 150321 (Class 21) of the CEQA Guidelines because the adoption of Measure G by the voters did not constitute an action taken by a regulatory agency. The court further held that Measure G did not assure protection of the environment and would have caused a rebalancing and reallocation of environmental impacts.

Accordingly, the court upheld the trial court’s invalidation of Measure G.

Key Point:

Whether a particular activity constitutes a project is a question of law. Therefore, the court considers in the first instance whether the public agency’s activity will cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment.

In comparison, whether a particular activity qualifies for the common sense exemption presents an issue of fact that is examined by the court for an abuse of discretion. The standard of review for the use of the common sense exemption is not entirely clear after the Supreme Court’s decision in Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372. Here, in the unpublished decision, the court applied the deferential substantial evidence standard but still found that the County’s use of the exemption was not supported by evidence in the record.


Friday, March 18th, 2016

In a published opinion, Preserve Poway v. City of Poway, 2016 Cal. App. LEXIS 177, the Fourth Appellate District upheld a mitigated negative declaration (MND) for a project that proposed to close the Stock Farm, a privately-owned horse boarding and training facility, and subdivide the site into twelve one-acre residential lots, a legally permissible use for the property.

The potential loss of the Stock Farm drew the ire of the community, especially members of the Poway Valley Riders Association (PVRA), which operated rodeo and polo grounds across the street from Stock Farm. If the project was approved, members would no longer be able to conveniently keep their horses near the PVRA facility. Because of this, PVRA contended that Poway’s “City in the Country” character would be harmed by the closing of this “long-standing community resource,” which it called “one of the Poway’s finest assets.” Interestingly, PVRA has the acreage to board horses on its property but had declined to do so in the past due to perceived liability issues associated with boarding horses.

After the City Council unanimously approved the MND, project opponents formed Preserve Poway and filed suit alleging that an environmental impact report (EIR) was required under CEQA for numerous reasons. After dismissing most of the arguments due to Preserve Poway’s failure to exhaust, the trial court agreed that an EIR was necessary because there was substantial evidence that the closing of the Stock Farm may have a significant impact on community character.

On appeal, the Fourth District disagreed, finding that there was no evidence that the project violated any land use regulations or would have any significant aesthetic impacts given that there was other similar residential areas nearby. Rather, the community character issue raised here concerned the local youth’s access to horse riding and the additional transportation time it would take to bring horses to the PVRA site. According to the court, these impacts were social and psychological, not environmental. Therefore, whether to approve the project was “a political and policy decision entrusted to Poway’s elected officials” and not “an environmental issue for courts under CEQA.”

Importantly, this case also represents the first published appellate decision to address the Supreme Court’s recent holding in California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369. In a brief discussion, the court rejected an argument that the existing horses, trucks, and horse trailers on the road could have a negative impact on the future residents of the project. The court held that this issue was outside the scope of CEQA after the Supreme Court’s decision because it concerned the impact of the existing environmental conditions on a proposed project’s future users or residents.

Finally, the court rejected Preserve Poway’s remaining arguments about the inadequacy of the MND because Preserve Poway had not appealed from the trial court’s judgment, thus forfeiting its right to bring these arguments before the appellate court.

Key Point:

A project’s social and psychological impact on community character need not be analyzed during an environmental review under CEQA. Any issues associated with these impacts are policy issues that should be decided during the political process. While the court here seemed to imply that community character should be discussed only in relation to aesthetic impacts, we note that a land use plan could contain policies on preserving community character and that the environmental review would need to consider whether the project was consistent with those policies.


Monday, January 4th, 2016

In an unpublished opinion, Cal. Clean Energy Comm. V. County of Placer, 2015 Cal. App. Unpub. LEXIS 9360, the Third Appellate District granted California Clean Energy Committee’s (Clean Energy) petition for writ of mandate challenging the County of Placer’s (County) approval of a proposal to expand an existing ski resort on the West Shore of Lake Tahoe.

Real Party in Interest, Homewood Village Resorts, LLC, proposed improvements to the Homewood Mountain Resort (Project), which would include: the redevelopment of the “North Base” for mixed-use; the “South Base” for residences; and the “Mid-Mountain area” for a lodge and beginner ski area. After a comprehensive Environmental Impact Report (EIR) process, the County Board of Supervisors approved the Project and certified the EIR. The County concluded that the Project’s social and economic “benefits outweigh the Project’s significant and unmitigated adverse impacts,” and “the adverse environmental impacts of the Project that are not fully mitigated are acceptable.” On review, the trial court issued a written ruling concluding the General Plan substantially complied with the statutory mandate to “address” wildfire evacuation routes; the County had broad discretion to determine the appropriate “threshold” for evaluating environmental impacts; and substantial evidence supported the County’s findings.

On appeal, Clean Energy contended that the County’s approval of the Project involved defects in the Placer County General Plan (General Plan) in violation of the Planning and Zoning laws (Gov. Code, § 65000 et seq.), because the General Plan does not “address evacuation routes” for the Project area, a high-risk wildlife area, as required by Government Code, Section 65302. Clean Energy also contended that the County violated the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) because the EIR for the Project failed to consider: (1) increased wildfire evacuation risks; (2) energy impacts for expanded snowmaking; (3) other energy impacts; (4) world travel impacts; and (5) because the evidence is insufficient to support the findings of infeasibility of carbon offsets and rail packages as climate disruption mitigation measures.

The Court first addressed alleged procedural defects in Clean Energy’s General Plan claims, concluding that Clean Energy’s Subdivision Map Act claim was neither forfeited nor barred by any statute of limitations. The Court then found that even though Clean Energy did not file a direct attack on the General Plan within the specified time period after its approval, Clean Energy had filed a timely lawsuit challenging the Board’s approval of a specific project; there was a nexus between the Project and General Plan to address contentions related to wildfire evacuation routes. Turning to Clean Energy’s substantive claim that the General Plan failed to “address” wildlife evacuation routes as required by Government Code, Section 65302, subdivision (g)(1), the Court applied a deferential standard of review and rejected Clean Energy’s argument. The Court concluded that the County’s General Plan is in substantial compliance with the former Government Code, Section 65302, subdivision (g) requirement to “address evacuation routes” related to “identified fire hazards.”

The Court then turned to Clean Energy’s CEQA claims. Clean Energy argued that the EIR failed to evaluate both components of wildlife evacuation risk – evacuation by residents, workers, and visitors, and the impact of that evacuation on access by emergency entities responding to wildfire. The Court concluded the EIR failed to adequately identify, describe, and analyze the wildfire evacuation risk associated with residents, workers, and visitors fleeing the area and the impact that evacuation will have on emergency response access.   The court explained that the EIR too narrowly focused the public safety discussion on emergency vehicle access, but even then, did so without discussing how emergency responders could share the same inadequate roads with vehicles occupied by residents, workers, and visitors evacuating the area.

Next, the Court rejected Clean Energy’s remaining CEQA claims involving energy impacts, world travel impacts, and climate impacts because Clean Energy failed to establish that any of those arguments are grounds for reversal. Specifically, the Court found that Clean Energy failed to exhaust on its claims related to transportation and equipment energy impacts, renewable energy resources, worldwide tourism impacts, and climate disruption mitigation. The Court rejected Clean Energy’s remaining energy claims and found that the EIR’s treatment of energy impacts complied with CEQA.

The Court reversed the judgment based on Clean Energy’s wildfire evacuation hazard CEQA claim and remanded the matter to the trial court with directions to enter a new judgment granting the petition for writ of mandate.


Friday, December 18th, 2015

On December 17, 2015, the Supreme Court filed a unanimous opinion in California Building Industry Association v. Bay Area Air Quality Management District (S213478). Interestingly, this is the first CEQA opinion to be drafted by the recently appointed Justice Cuéllar. This case pertains to the adoption of thresholds of significance for greenhouse gas emissions and toxic air contaminants by the Bay Area Air Quality Management District (BAAQMD). Some of these thresholds required lead agencies to analyze how toxic air contaminants would affect the residents and workers who would be brought to the area as a result of the proposed project.

Initially, the litigation concerned whether BAAQMD’s adoption of these thresholds was a “project” subject to CEQA review. The trial court found that it was and issued a writ of mandate invalidating the thresholds for failure to comply with CEQA. The First District Court of Appeal reversed, finding that the thresholds were not subject to CEQA review for two reasons. First, the CEQA Guidelines establish the required procedure for enacting generally applicable thresholds of significance, and prior CEQA review is not part of that process.  Second, the thresholds were not a “project” because the “environmental change” alleged by California Building Industry Association (CBIA) was speculative and not reasonably foreseeable. The Supreme Court did not grant review over this issue and thus the Court of Appeal’s holding that the act of adopting thresholds is not a project under CEQA stands.

The Supreme Court granted review only on the narrow issue of whether CEQA requires an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project. At the appellate court, BIA had raised a facial challenge against BAAQMD’s air pollution thresholds, arguing they were contrary to a line of cases holding that CEQA does not require lead agencies to evaluate impacts of the environment on the proposed project — the so-called ‘CEQA in reverse’ issue. The First District dodged the larger issue and held that the receptor thresholds have valid applications irrespective of whether CEQA requires an analysis of how existing environmental conditions impact a project’s future residents or users, and therefore were not facially invalid. The Supreme Court chose not to review this holding.

The Supreme Court’s opinion centers on the amount of deference that should be given to the CEQA Guidelines. Specifically, Guidelines section 15126.2(a), which indicates with the following language that CEQA requires an evaluation of environmental conditions on a proposed project site if those conditions may cause substantial adverse impacts to future users of the project:

“The EIR shall also analyze any significant environmental effects the project might cause by bringing development and people into the area affected. For example, an EIR on a subdivision astride an active fault line should identify as a significant effect the seismic hazard to future occupants of the subdivision. The subdivision would have the effect of attracting people to the location and exposing them to the hazards found there. Similarly, the EIR should evaluate any potentially significant impacts of locating development in other areas susceptible to hazardous conditions (e.g., floodplains, coastlines, wildfire risk areas) as identified in authoritative hazard maps, risk assessments or in land use plans addressing such hazards areas.”

CBIA argued that this Guideline went beyond the scope of CEQA’s statutory language and should be struck down by the Court as invalid. The Court first held that Guidelines were entitled to great weight because of the Natural Resources Agency’s CEQA expertise and because the Natural Resources Agency adopted the Guidelines pursuant to the Administrative Procedures Act, with its inherent safeguards of notice and comment. But this deference does not extend to provisions that are “clearly unauthorized or erroneous” under CEQA.

Any statutory support for this Guideline would be found in Public Resources Code section 21083(b)(3), which states that “a project may have ‘a significant effect on the environment’” if “[t]he environmental effects of a project will cause substantial adverse effects on human beings, either directly or indirectly.” Despite the deference owed to the Natural Resources Agency’s interpretation of CEQA, the court found that section 21083 “does not contain language directing agencies to analyze the environment’s effects on a project” and that “[r]equiring such an evaluation in all circumstances would impermissibly expand the scope of CEQA.”

The court was also not persuaded that special CEQA requirements to consider the existing environment for certain airport, school, and housing construction projects evidenced a larger rule. Instead, the court viewed these as exceptions to the general rule that CEQA’s analysis is concerned with the project’s impact on the environment rather than with the environment’s impact on a project or its users.

However, the court found that in certain instances, a project may exacerbate the environmental hazards or conditions that already exist, and in those instances an agency must analyze the potential impact of such hazards on future residents. The court characterized this as a situation in which the project was affecting the environment by exacerbating these existing hazards.

The court found that some of the language in Guidelines section 15126.2(a) could be read as requiring an agency to consider this exacerbation issue; however, other language could not. Accordingly, the court invalidated the following language: “an EIR on a subdivision astride an active fault line should identify as a significant effect the seismic hazard to future occupants of the subdivision. The subdivision would have the effect of attracting people to the location and exposing them to the hazards found there.”

As for the BAAQMD “receptor” thresholds, they will be considered on remand by the appellate court in light of the Supreme Court’s holding.

Key Point: Going forward, agencies are not prohibited from considering how existing conditions might impact a project’s future users or residents, but there is no longer a requirement to do so unless the project may exacerbate an existing onsite hazard.

Double Dribble: Court Rejects Second CEQA Lawsuit Over the Downtown Sacramento Arena

Thursday, March 5th, 2015

In Saltonstall v. City of Sacramento, 2015 Cal. App. LEXIS 150, the California Third District Court of Appeal affirmed the trial court’s denial of a writ of mandate challenging the environmental impact report (EIR) for an arena in downtown Sacramento (arena project) and held the City of Sacramento (City) did not prematurely commit itself to the downtown arena project before completing the EIR.

The case is the second time the Third District Court of Appeal ruled on the arena project in three months. (Summary of Saltonstall I by the Thomas Law Group available here: In that case, the court held the amendments to the California Environmental Quality Act (CEQA) streamlining the review of the arena project did not violate the constitutional separation of powers.

In the instant case, the court first rejected petitioners’ argument that the City violated CEQA by committing itself to the arena before completing the proper environmental review. The court explained the City’s nonbinding term sheet with the arena project developer expressly provided that all proposed terms of the development were subject to CEQA review. Also, the exercise of eminent domain to secure a site for the arena project did not constitute a commitment to the ultimate project site requiring prior CEQA review. The court reasoned that together CEQA Guidelines section 15004, which permits entering into land acquisition agreements as long as the public agency conditions the future use of the site on CEQA compliance, and Public Resources Code section 21168.6.6, which expressly authorized the City to prosecute the eminent domain action at issue prior to completing CEQA environmental review, demonstrated the City’s eminent domain action did not improperly commit it to the arena project.

Next, the court held the EIR was not deficient for failing to include a remodel of the City’s current basketball arena as a project alternative. The City’s objectives for the arena project included the revitalization of downtown and building a state-of-the-art entertainment venue. Even if remodeling the existing arena might be environmentally superior, the court concluded a remodeled arena would not meet the City’s downtown redevelopment objectives.


The court also rejected petitioners’ other challenges to the arena project. The court held substantial evidence supported the City’s traffic analysis conclusions and the City was under no obligation to conduct further studies simply because petitioners desired a more thorough review. The court also rejected petitioners’ argument that the EIR was deficient for not including an analysis of crowd safety impacts. The court reasoned CEQA was limited to impacts to the physical environment, which did not include crowd safety. Finally, the court stated petitioners forfeited their request to introduce certain material into the administrative record by failing to offer any meaningful analysis on the issue.


The CEQA objectives for a project are critical when courts review the alternatives analysis in an EIR. Because the City established its objectives as requiring revitalization of downtown, other alternatives outside of the downtown area that may have had less of an environmental impact could properly be rejected.