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CEQA Updates

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

Tiering/Streamlining Posts

Petition by Collective Citizens Groups Barred by Res Judicata and Collateral Estoppel Where Individual Group Received Previous Final Judgement on Same Project Issues

Friday, September 14th, 2018

In The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, the Fourth District Court of Appeal affirmed a judgement entered by the trial court sustaining a demurrer without leave to amend, holding that a mandate action brought by The Inland Oversight Committee (IOC), CREED-21, and the Highland Hills Homeowners Association (HOA) alleging CEQA and Water Code violations was barred by res judicata based on the final judgment in the HOA’s prior related CEQA action and failure to state a claim.

The Court’s opinion involved challenges to modifications to the Highland Hills Project (Project), a 541-acre mixed use development in the City of San Bernardino (City). The specific plan and associated EIR were originally approved in 1982. Subsequent amendments to the Project and challenges to those amendments resulted in an agreement. As relevant here, the agreement’s second addendum (Second Addendum) permitted “minor modifications” to the Project, defined as those resulting in development with the same or less intense environmental impacts from a CEQA standpoint, could be approved as “ministerial acts” by the City’s development director without further planning commission involvement.

In 2014, Real Party in Interest First American Title Insurance Company (First American), the developer’s successor in interest, applied for modified construction plans that (1) further reduced the total number of units; (2) eliminated commercial uses, including a convenience store and golf course; (3) increased park acreage and protected an important ridge line by eliminating higher-elevation development; and (4) substantially reduced the Project’s  footprint and impact on jurisdictional streams and wetlands. The City’s development director adopted and made findings from an independent environmental consultant’s report that these were “minor modifications” in line with the Second Addendum. The City rejected appeals by the HOA and approved the modifications. The City filed a motion in the trial court requesting confirmation the proposed changes complied with the terms of the Second Addendum. The trial court granted the motion. The HOA timely appealed.

In an unpublished 2017 decision, the Court of Appeal held that the HOA “failed to demonstrate either that the City eliminated any mitigation measures without due consideration or that there was a lack of substantial evidence supporting the City’s conclusion that the [Project modifications] would have equally intense or less intense environmental impacts than the unmodified [Project].”

The IOC, joined by CREED-21 and the HOA, filed suit in 2015 challenging the approval of the minor modifications by the City for being illegal under CEQA and the Water Code. The trial court sustained the City and First American’s demurrer without leave to amend on the grounds that the issues were moot by the principle of res judicata. The IOC, CREED-21, and the HOA collectively appealed.

Addressing the doctrine of res judicata, the Appellate Court found that a valid final judgement on the merits bars subsequent action by the parties “or their privities on the same cause of action.” Identical causes of action are those that involve the same “primary right.” For CEQA cases, res judicata is limited; “if two actions involve the same general subject matter but involve two distinct episodes of purported noncompliance, the doctrine of res judicata does not apply.” Applying these principles, the Court held that the IOC, CREED-21, and the HOA’s CEQA claim was the same one asserted in the related action brought only by the HOA and resolved in 2017. Specifically, the claims in both are that the City violated CEQA by failing to conduct further environmental review by treating First American’s proposal as “minor modifications” under the Second Addendum. The HOA litigated the claim and lost, receiving a final judgement on arguments that were specifically alleged in the action brought by the three groups together.

The Court then turned to principles of collateral estoppel. Privity is found where “a relationship between the party to be estopped and the unsuccessful party in the prior litigation is “sufficiently close” so as to justify application of collateral estoppel. Thus, the Court likewise barred the same CEQA claim as asserted by the IOC, CREED-21, and the HOA together because the entities are in privity with the HOA. Such a relationship renders the losing litigant a “virtual representative” of the new plaintiffs where it has the “same interest” as them and a “strong motive” to assert it. The IOC, CREED-21, and the HOA shared the same interest in “promoting responsible land use and planning” and sought to invalidate the minor modifications. Since there was no evidence the HOA failed to zealously litigate the related matter, the IOC, CREED-21, and the HOA’s collective interests were adequately represented in the previous case.

The Court also dismissed appellants Water Code claim that asserted a Water Supply Assessment (WSA) was required for the Project modifications. While a WSA is required for certain discretionary development approvals, the Project modifications, as held above, were ministerial.

The Court affirmed the trial court’s judgement; the demurrer was sustained.

Key Point:

The doctrines of res judicata and collateral estoppel prevent citizens’ groups from collectively filing a lawsuit with the same issues that one of the groups had previously received a final judgment on.

Second District Court of Appeal Finds Secondary Parking Impacts Exempt from CEQA Review, Encourages Project Area Contextualization

Wednesday, February 28th, 2018

In Covina Residents for Responsible Development v. City of Covina, (2018) 21 Cal.App.5th 712, the Second District Court of Appeal held that parking impacts caused by a project are exempt from CEQA review, per Public Resources Code section 21099. Additionally, the Court found that the City of Covina (City) properly tiered from a prior EIR for a specific plan where potential project-specific impacts were addressed in a project-specific analysis and mitigation measures were imposed to address identified impacts. Further, where impacts are statutorily exempt, as they were here for parking impacts, no further analysis is required in the tiered document. Finally, approval of a project tentative map is only appropriate where the local agency makes findings that the map is compatible with objectives, policies, general land uses and programs in the specific plan but need not show perfect conformity.

In 2012, project applicants submitted a proposal to the City of Covina (City) for the construction of a mixed-used urban residential infill project (Project) near the Covina Metrolink commuter rail station. The Project underwent numerous revisions and was repeatedly challenged for its alleged impacts on parking in and around the project site. Ultimately, the City approved the Project and issued a mitigated negative declaration (MND). Covina Residents for Responsible Development (CRRD) filed suit alleging the City was required to prepare an EIR, improperly tiered the MND from the specific plan EIR, and violated the Subdivision Map Act by failing to make necessary findings. CRRD’s principal CEQA challenge focused on the project’s allegedly inadequate parking.

The trial court denied the petition, finding (a) no substantial evidence supported CRRD’s claim that the parking shortage would result in environmental impacts; (b) parking impacts from the Project were exempt from environmental review under Public Resources Code section 21099; (c) the City properly tiered its environmental review from the specific plan EIR; and (d) the City did not violate the Subdivision Map Act. CRRD timely appealed.

The Appellate Court first addressed whether the alleged parking impacts are exempt from environmental review under Public Resources Code section 21099 subdivision (d)(1), which provides, “[a]esthetic and parking impacts of a residential, mixed-use residential, or employment center project on an infill site within a transit priority area shall not be considered significant impacts on the environment.” The Court concluded that parking impacts need not be addressed in the City’s environmental analysis because Section 21099 specifically exempted such analysis for infill sites within a transit priority area. The Court established that the Project was within a transit priority area and that the City had no obligation to analyze parking impacts caused by the Project.

The Court noted that the statutory intent of the bill was to address climate change and the state’s long term environmental goals and to build on prior statutes, including AB 32 and SB 375.

The Court then dismissed Petitioner’s claim that the MND improperly tiered from the specific plan EIR. Traffic impacts from a parking shortage related to an infill project, as discussed above, are exempt from CEQA review though were nevertheless adequately considered in the specific plan EIR.

Finally, the Court dismissed CRRD’s claim that the City’s findings relating to the consistency of the Project’s tentative map were not supported by substantial evidence. Government Code sections 66473.5 and 66474 require local agencies to make findings related to consistency with the specific plan and design of the project. Here, the Court determined the City adopted all necessary findings and CRRD failed to identify evidence in the record that the Project was incompatible with the specific plan.

Key Point:

Public Resources Code section 21099 exempts project parking impacts from CEQA review when the project is contextualized in an urban infill setting.

Where impacts are statutorily exempt, no further analysis is required in a tiered EIR.

Approval of a project tentative map is only appropriate where the local agency makes findings that the map is compatible with objectives, policies, general land uses and programs in the specific plan but need not show perfect conformity.


Wednesday, December 9th, 2015

In an unpublished opinion, City of Milpitas v. City of San Jose, 2015 Cal. App. Unpub. LEXIS 8610, the Sixth Appellate District upheld the City of San Jose’s Environmental Impact Report (EIR) prepared for the Newby Island Sanitary Landfill and Recyclery. The programmatic EIR assessed the impacts of: (1) increasing the maximum elevation of the landfill to increase the landfill’s capacity; and (2) rezoning the landfill area and Recyclery to conform to existing and proposed landfill activities.

The Court first determined that the document qualified as a programmatic EIR because it involved a comprehensive rezoning and because specific details about construction and operation were not available for a number of uses proposed as part of the project, requiring further environmental review.

Applying the substantial evidence standard of review, the Court rejected the City of Milpitas’ allegation that the City of San Jose utilized an improper baseline that incorporated changes proposed by the project into its assumptions. One of the three baselines considered in the EIR was the “existing conditions (as they are today on the ground, including proposed changes to existing operations).” The Court found that this baseline was appropriate because the EIR first considered the existing conditions and then analyzed the effects of the proposed rezoning at a “first-tier level of detail.”

The Court next addressed whether the impact analysis was adequate. With regard to the light impact analysis, the Court found that, as a program-level document, the City of San Jose’s analysis was proper. The final EIR expressly called for further environmental review for many uses that would be allowed by the rezoning, including expansion of landfill yard activities and construction of new structures. The structures would presumably comply with the City of San Jose’s lighting policy and design guidelines and any potentially significant project-specific impacts would be identified and mitigated as part of later environmental review.

The Court then turned to the EIR’s noise analysis. The City of Milpitas alleged that the final EIR would allow the relocation of certain landfill activities within an identified California clapper rail buffer and the relocation of such landfill activities was not properly analyzed in the EIR. The Court deferred to the City of San Jose’s interpretation of the buffer and found that the project would have no significant operational noise or vibration impacts. To the extent that the City of Milpitas also challenged the use of existing noise conditions in determining whether new uses would be substantially louder, the Court found that the existing noise levels were appropriately part of the environmental baseline.

On the odor analysis, the Court rejected the City of Milpitas’ argument that the final EIR failed to follow the air district’s significance thresholds for odor. The Court held that because the final EIR effectively treated odor impacts as potentially significant and identified mitigation measures to counteract those impacts, any deficiency in compliance with the air district’s guidelines threshold of significance was harmless. The City of Milpitas’ allegation that the EIR failed to analyze the odor impacts of increased landfill gas emissions was also rejected by the Court; the expert conclusion in the record was not contradicted by other expert evidence. The Court also rejected arguments raised by the City of Milpitas regarding volatile organic compounds and sulfur oxides because they were forfeited for failure to exhaust administrative remedies. Even assuming the City of Milpitas had not forfeit those arguments, the Court held that it had not provided any expert evidence to support its assertions on appeal.

Finally, the Court rejected the City of Milpitas’ assertion that the EIR’s project objectives were drawn so narrowly that they precluded effective analysis of alternatives to the project. The Court recognized that CEQA does not forbid site-specific project objectives and found that the site specific nature of the EIR’s project objectives did not preclude effective alternatives analysis. The Court also held that the City Council’s conclusion that none of the alternatives was feasible was supported by substantial evidence.

Two Wins for the Railyards Development in Third District Court of Appeal

Tuesday, October 20th, 2015

This month, the Third District Court of Appeal issued two unpublished opinions on pending CEQA suits challenging the Railyards development in Sacramento. Both opinions affirm the decisions of the trial court and conclude that the City of Sacramento complied with CEQA when it adopted the Railyards Specific Plan and the Railyards Redevelopment Plan.

In Sacramento Citizens Concerned About the Railyards v. City of Sacramento (C065220, Oct. 7, 2015), the Court held that the program EIR for the Railyards Specific Plan adequately described historic and archaeological resources, provided adequate information regarding water quality impacts, appropriately described the project, did not improperly segment review of the project’s cistern, and adequately analyzed traffic and air quality impacts.

In the second case, Castro v. City of Sacramento (C062091, Oct. 9, 2015), the petitioners challenged the City’s decision to amend the 1990 Richards Boulevard Plan to remove 300 acres from its boundaries and rename it the River District Redevelopment Plan. Those 300 acres then became the new Railyards Redevelopment Plan. Petitioners challenged the City’s adoption of the Railyards Redevelopment Plan under CEQA, arguing that the EIR improperly tiered from the Railyards Specific Plan EIR, the environmental review was improperly segmented, and the EIR failed to analyze and mitigate toxic air contaminants. The Court disagreed and affirmed the trial court’s judgment in the City’s favor.

Judge Rules Against Petitioner’s Lawsuit Challenging EIR for McKinley Village Infill Project

Monday, April 20th, 2015

In an opinion issued April 9, 2015, Sacramento Superior Court Judge Timothy Frawley denied a petition for a writ of mandate challenging the environmental impact report (EIR) for the McKinley Village infill development project in East Sacramento. The court also rejected petitioner’s argument that McKinley Village conflicted with the City of Sacramento’s General Plan. Thomas Law Group successfully represented the developer in defending against the suit.

The McKinley Village project broke ground in summer 2014 on 336 residential units and associated infrastructure. The vacant 49-acre lot is bounded by a freeway to the north and railroad tracks to the south along with a former landfill site beyond the freeway to the north. Following a recommendation by the City’s Planning and Design Commission, the City Council certified the EIR and approved the McKinley Village project. Petitioner “East Sacramento Partnerships for a Livable City” subsequently filed a petition seeking to set aside the City’s approval of the project.

Petitioner first claimed the EIR did not adequately analyze how the project’s proximity to a freeway, railroad tracks, and former landfill site may adversely affect the health and safety of future McKinley Village residents. However, the court held the California Environmental Quality Act (CEQA) only requires a lead agency to analyze the impacts a project will have on the existing environment––as opposed to the affects the environment will have on a project. Therefore, the City could not have violated CEQA by failing to “adequately” analyze the impacts of the existing environmental conditions on the project because CEQA did not require any analysis of those impacts at all.

Next, petitioner contended the City violated CEQA by not recirculating the EIR after making “significant and fundamental” changes to the project. The purported changes compelling recirculation included a third vehicular access at Alhambra Boulevard, a proposal to remove Sutter’s Landing Parkway from the City’s General Plan, a half-street closure at the intersection of 28th and C streets, as well as approvals for a development agreement, a rezoning request to allow multi-family residential uses, and a variance for driveway widths.

The court held neither the proposal to consider another vehicular underpass at Alhambra Boulevard access nor the proposal to remove Sutter’s Landing Parkway from the City’s General Plan were part of the project approved by the City. As the City would have to complete additional environmental review if either proposal moved forward, the City did not have to recirculate the EIR due to these proposals.

With respect to the development agreement and driveway variance, the court agreed with petitioner that they should have been included in the draft EIR as approvals needed to implement the project. However, the City’s failure to include them did not preclude public participation and therefore was not a prejudicial abuse of discretion. Additionally, while the City decided to rezone to allow multi-family dwelling units after circulating the draft EIR, the court held petitioner failed to satisfy its burden of showing this constituted significant new information and the City did not abuse its discretion by not recirculating the EIR.

Similarly, the court held the half-street closure at 28th and C streets did not constitute significant new information. The court agreed with the City that the closure diverted traffic to another street with greater capacity and did not substantially increase the severity of traffic impacts in the EIR.

Petitioner also contended the EIR violated CEQA because it failed to properly identify, analyze and mitigate traffic impacts. However, the court held substantial evidence supported the City’s traffic impact conclusions. Further, the City did not abuse its discretion by using a flexible Level of Service (LOS) metric from the General Plan as the significance threshold to measure the traffic impacts on intersections. Although using the flexible LOS standard allowed otherwise significant levels of traffic congestion to exist without constituting a significant impact, it avoided more detrimental mitigation measures to reduce traffic impacts such as widening lanes and building new roads.

Finally, the court rejected petitioner’s argument that the McKinley Village project was inconsistent with the City’s General Plan. Petitioner listed eighteen General Plan policies that allegedly conflicted with the project; however, the court explained that many of the policies were amorphous and subjective such as “supporting transit service” and “promoting complete neighborhoods.” Accordingly, petitioner’s perceived inconsistencies with these imprecise policies was insufficient to render the project inconsistent with the General Plan as a whole. Where the policies were more discrete in nature such as investigating the site for hazardous materials, the court held adequate evidence supported a finding of consistency.

Only one General Plan policy gave the court pause––a requirement that new neighborhoods include transit stops within a half mile of all dwellings. The court ultimately concluded that given other portions of the General Plan discouraging users from focusing on individual General Plan elements, the City reasonably could have concluded the policy was an advisory policy and strict compliance was not mandatory. Therefore, the court held the City did not abuse its discretion in finding McKinley Village was consistent with the General Plan.

Following the court’s decision, an attorney for the petitioner told the Sacramento Business Journal the petitioner is considering its options including whether to file an appeal.


Fourth Appellate District Publishes Opinion Requiring Supplemental EIR for San Diego County’s Climate Action Plan

Monday, January 12th, 2015

On November 24, 2014, the Court of Appeal for the Fourth District granted a request to publish the recent case Sierra Club v. County of San Diego, 2014 Cal. App. LEXIS 1077. In the decision, the appellate court affirmed the trial court and granted a writ of mandate requiring a supplemental environmental impact report (EIR) for San Diego County’s Climate Action Plan (CAP).

The publication of the opinion comes on the heels another key California environmental law case in Cleveland National Forest Foundation v. San Diego Association of Governments, 2014 Cal. App. LEXIS 1070. In both cases, the Fourth Appellate District examined the application of Governor Schwarzenegger’s 2005 Executive Order No. S-3-05 and the Legislature’s subsequent climate change mandates in AB 32 and SB 375. The executive order required statewide reduction of greenhouse gas emissions to 2000 levels by 2010, to 1990 levels by 2020, and to 80 percent below 1990 by 2050.

In the newly-published Sierra Club opinion, the court emphasized the specific evidentiary support required by lead agencies in complying with the mandates of the 2005 executive order and subsequent legislation. The executive order “requires consistent emissions reductions each year from 2010 through 2020 and then a greater quantity of emissions reductions each year from 2020 through 2050.” Lead agencies such as the County cannot rely on compliance with other state and federal statutes and planned but unfunded programs to meet the greenhouse gas emission reduction requirements. A “good faith, reasoned analysis” under CEQA requires more than citations to entire appendices in the County’s CAP; it requires specific evidence that people will participate in the various programs to the extent necessary to achieve the emissions reductions.

A complete summary of the case is available here:

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 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. 

Appellate Court Requires Supplemental EIR for San Diego County’s Climate Action Plan

Monday, November 17th, 2014

In an unpublished decision in Sierra Club v. County of San Diego, 2014 Cal. App. Unpub. LEXIS 7762, the California Court of Appeal for the Fourth District granted a writ of mandate to enforce a mitigation measure in San Diego County’s (County) 2011 general plan update to reduce greenhouse gas (GHG) emissions in the County.

In response to the mandate in AB 32 that the state reduce its GHG emissions to 1990 levels by 2020, the County adopted a series of climate change-related mitigation measures.  One such mitigation measure was CC-1.2, which required the County to prepare a climate action plan (CAP) that included more detailed GHG emissions targets and deadlines to reduce the County’s GHG emissions in accordance with AB 32.

Sierra Club contended the CAP adopted by the County violated the California Environmental Quality Act (CEQA) by failing to include adequate analysis of the environmental impacts and failing to comply with the requirements of Mitigation Measure CC 1.2. Sierra Club also challenged the County’s related guidelines that permitted projects that fall below a bright line threshold (hereafter “Thresholds Project”) to avoid detailed GHG analysis in future project-level environmental documents. The court found that the County failed to comply with CC-1.2 for three reasons. First, the CAP did not include enforceable GHG emissions as required by CC 1.2. Instead, the County described the emissions reductions strategies as “recommendations.” Second, the CAP did not contain “more detailed deadlines” as required by CC 1.2 and instead included only the final 2020 goal without incremental emissions objectives. The County also failed to cite any specific evidence in the record that people would participate in the programs to achieve the target reductions.

The court also found the County failed to make adequate finding regarding the environmental impact of the CAP and Thresholds project. The County improperly assumed the CAP and Thresholds project was part of the general plan update so the County did not analyze the environmental impacts of the CAP and Thresholds project itself. Because the general plan update’s plan-level EIR did not analyze the CAP and Thresholds project, the court required the County to complete a separate EIR.

The court next concluded the County violated CEQA section 21081.6 by failing to incorporate mitigation measures directly into the CAP. Section 21081.6 requires public agencies to include enforceable mitigation measures directly into the adopted plans.  

Finally, the court held there was no substantial evidence to support the County’s conclusion that a supplemental EIR was not required. The details of the CAP were not available during the completion of the Program EIR for the general plan update. As a result, key elements such as baseline GHG emission levels and monitoring programs were not considered in the Program EIR. Accordingly, the court affirmed the trial court’s decision that a supplemental EIR was required to ascertain the environmental impacts of the CAP and Thresholds project.


ALL ABOARD! – High Speed Rail Moves Forward with Bay Area to Central Valley Route After Appellate Court Approval

Friday, August 29th, 2014

In Town of Atherton v. Cal. High-Speed Rail Authority, (2014) Cal. App. LEXIS 670, the Court of Appeal for the Third District upheld the final program environmental impact report (EIR) for the segment of the California High Speed Rail project linking the San Francisco Bay Area to the Central Valley.

In the EIR, the California High Speed Rail Authority (the Authority) identified the Pacheco Pass route, which would direct the train west near Fresno, as the preferred alternative route to the Bay Area.  The Authority also considered the Altamont Pass route, which would turn west closer to Stockton.  Several environmental groups and cities on the San Francisco Peninsula (the Petitioner) challenged the EIR claiming that it violated the California Environmental Quality Act (CEQA) because the EIR did not adequately analyze options for locations to elevate the track along the Peninsula, used a flawed revenue and ridership model, and contained an inadequate range of alternatives.

Despite not raising the issue of preemption with the trial court, the Authority sought to dismiss the case because the Interstate Commerce Commission Termination Act (ICCTA) preempted any CEQA remedy.  The court held that it did not even need to address the “complex, difficult, and controversial subject” of ICCTA preemption because the market participant exception to preemption applied in the case.  Under the market participant exception, because the state is acting as a market participant and building the project, rather than functioning as a regulator, the project is subject to CEQA review.  While it was unusual for the Petitioner to invoke the market participant exception to compel a state agency to comply with state law, the court found no support for the Authority’s assertion that only the public agency could use the doctrine defensively to protect actions it elected to take in the market.    

On the merits of the case, the court first held that the analysis of locations to elevate the track on the Pacheco Pass route was adequate for a program EIR.  A program EIR allows for a tiering process of review where the program EIR provides coverage of general matters, followed by site-specific project-level EIRs that provide a more thorough analysis.  In this case, the court stated that requiring project-level review of different sites for elevating the track would undermine the purpose of tiering and burden the program EIR with details that are more appropriate for a project EIR.

Next, the court held that the revenue and ridership model used in the EIR was adequate.  While experts disagreed on the best model to use, the court stated that disagreement among experts does not make an EIR inadequate and it would be improper for the court to determine the credibility of experts.  As a result, Petitioner failed to satisfy its burden of showing that the model was “clearly inadequate or unsupported” and substantial evidence supported the Authority’s model.

Finally, the court rejected Petitioner’s argument that the Authority needed to include a broader range of alternatives in the EIR.  Petitioner provided several additional alternatives through a European consulting firm, but the court stated that the Authority was not required to consider alternatives that were substantially similar to the alternatives already analyzed in the EIR.  Further, the Authority’s feasibility determination was entitled to significant deference by courts.  Each of Petitioner’s alternatives was either redundant or infeasible and as a result, the court held that the Authority considered an adequate range of alternatives in EIR.


The market participant doctrine is not just a doctrine for public entities to invoke defensively to refute preemption claims.  As in this case, it can be used by private parties to force public entities to comply with state law.

Additionally, the court reinforced that the purpose of a program EIR is to provide decision-makers with an overview of the cumulative impacts of a project and allow for consideration of broad policy alternatives and program-wide mitigation measures early in the review process.  It is inefficient and counterproductive to include more specific, project-level analysis in a program EIR when a tiered review process is being utilized.