When an agency has violated CEQA, a court must determine what remedial action to take in response. CEQA’s remedies statute, Public Resources Code section 21168.9, gives courts broad discretion to tailor a remedy appropriate to the situation. At one end of the remedies spectrum, a court may order every approval and decision made on the project to be voided, require further environmental review to be performed, and prevent the project from moving forward or operating in the meantime. (Pub. Resources Code 21168.9(a)(1)-(3); see, e.g., Sierra Club v. County of Fresno (2020) 57 Cal.App.5th 979, 991; King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814, 897-899, 901 (King & Gardiner Farms).) At the other end of the spectrum, a court may simply require that technical deficiencies be fixed, without impacting the project or approvals. (See, e.g., Schenck v. County of Sonoma (2011) 198 Cal.App.4th 949, 960-961 (Schenck); Center for Biological Diversity v. Department of Fish & Wildlife (2017) 17 Cal.App.5th 1245, 1254-1256 (Center for Biological Diversity).) Between those two endpoints a court may craft a remedy that affects only part of a project or part of the approval process, or may provide specific instructions defining the agency actions required to bring the CEQA review or approval process into compliance. (See, e.g., Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1178-1182 (Anderson First); POET, LLC v. State Air Resources Bd. (2013) 218 Cal.App.4th 681, 766-767 (POET I).)
An appellate court identifying a CEQA violation has discretion to either determine the remedy itself or remand for the trial court to do so. (POET, LLC v. State Air Resources Bd. (2017) 12 Cal.App.5th 52, 90 (POET II); see, e.g., Save Our Schools v. Barstow Unified School Dist. Bd. of Education (2015) 240 Cal.App.4th 128, 144-145.) When a trial court finds a CEQA violation, its remedy determination is reviewed for abuse of discretion. (Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 287 (Preserve Wild Santee).) A court’s interpretation of CEQA’s remedies statute, however, is reviewed de novo. (Ibid.)
Public Resources Code section 21168.9 gives courts flexibility to tailor remedies to fit specific CEQA violations. (San Bernardino Valley Audubon Soc’y v. Metro. Water Dist. (2001) 89 Cal.App.4th 1097, 1103-1104 (San Bernardino).) Under the statute’s first provision, when a CEQA violation is identified, the court must issue at least one mandate. (Pub. Resources Code, § 21168.9(a).) The mandate may void some action of the public agency in whole or in part, suspend some or all project activities, and/or require the public agency to take some specific action to bring its approval process into compliance with CEQA. (Ibid.) The second provision contains a severance remedy, which allows a court to sever the noncompliant portions of a project from the rest of the environmental review process or approval provided specific severance findings are adopted by the court. (Id. § 21168.9(b).) The final provision states that a court may not direct an agency to exercise its discretion in any particular way (i.e., require an agency to deny a project), and clarifies that the statute does not limit a court’s equitable powers except as expressly stated. (Id. § 21168.9(c).)
Courts often issue a writ requiring the agency to set aside its CEQA determination and any project approvals and requiring corrective action before the agency reapproves the project. (King & Gardiner Farms, supra, 45 Cal.App.5th at p. 896.) A court may order a specific corrective action if the agency no longer has discretion regarding how it complies with CEQA. (John R. Lawson Rock & Oil, Inc. v. State Air Resources Bd. (2018) 20 Cal.App.5th 77, 103 (John R. Lawson Rock & Oil).) Thus, if a court determines there is a fair argument that a nonexempt project may result in significant impacts, the proper remedy may be to order the preparation of an EIR. (Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 319-320.) However, when the agency retains discretion on how to proceed under CEQA, it must be permitted to exercise that discretion as it chooses on remand. (John R. Lawson Rock & Oil, supra, 20 Cal.App.5th at p. 103; Pub. Resources Code, § 21168.9(c).) As such, a court cannot require preparation of an EIR if the agency still has discretion to apply an exemption or issue a negative declaration. (See Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1121-1122; but see Martis Camp Community Assn. v. County of Placer (2020) 53 Cal.App.5th 569, 607 [agency prejudicially abused its discretion by concluding that no SEIR was required].)
There is a split between appellate courts as to whether a court may order partial decertification of an EIR, and the Supreme Court has yet to resolve the split. (Compare Center for Biological Diversity, supra, 17 Cal.App.5th at p. 1252 [partial decertification is “clearly allow[ed]” if severance findings are made] and Preserve Wild Santee, supra, 210 Cal.App.4th at pp. 288-289 [implying an EIR may be decertified in part] with LandValue 77, LLC v. Board of Trustees of California State University (2011) 193 Cal.App.4th 675, 682 [rejecting partial decertification] and Sierra Club v. County of Fresno, supra, 57 Cal.App.5th at pp. 988-989 [same].) Due to the split in appellate courts over the proper interpretation of section 21168.9 in this respect, the likelihood that severance findings will be made may depend, in part, on the appellate district with jurisdiction over the matter. Furthermore, as discussed below, CEQA violations in one area may be found to taint other determinations made by the agency, making it difficult to establish that severance is proper.
Section 21168.9 also allows for a wide range of other lesser remedies to suit particular situations. (Pub. Resources Code, § 21168.9(a)-(b).) A court may allow an agency’s approvals to remain in effect while the CEQA violations are corrected. (Preserve Wild Santee, supra, 210 Cal.App.4th 260, 288; Schenck, supra, 198 Cal.App.4th at pp. 960-961; see also Center for Biological Diversity, supra, at p. 1256.) However, in an unpublished portion of Sierra Club v. County of Fresno (section II.A.3-5), the court emphasized approvals can only be severed if not affected by the CEQA violation; it then indicated this may be difficult to achieve because a CEQA violation can preclude informed decisionmaking, thereby tainting the approval as well.
Certain situations warrant a remedy permitting project activities to proceed while approvals are to be voided. (See, e.g., POET, LLC v. State Air Resources Bd. (2013) 218 Cal.App.4th 681, 760-764 (POET I) [finding public interest weighed in favor of keeping Project regulations in place]; POET II, supra, 12 Cal.App.5th at pp. 95-101 [finding “the relief granted should not harm the environment”]; City of Santee v. County of San Diego (1989) 214 Cal.App.3d 1438, 1455-1456 [temporary jail facility expansion allowed to continue operating due to emergency overcrowding situation and because there was no evidence of environmental impacts beyond the scope of prior, valid EIR]; Laurel Heights, supra, 47 Cal.3d 376, 424 [finding “CEQA will not be thwarted by allowing UCSF to continue its present activities”]; but see King & Gardiner Farms, supra, 45 Cal.App.5th at pp. 897-899 [refusing to allow ordinance, which the agency was under no obligation to adopt and the primary purpose of which was to accelerate oil and gas development, to remain in effect].)
Courts may also sever portions of the determination, finding, decision, or project activities found to violate CEQA from those which do not. (Pub. Resources Code § 21168.9(b).) For example, courts have applied this provision to sever a physical portion of a development project (Anderson First, supra, 130 Cal.App.4th at pp. 1178-1181); initiation of an eminent domain action from the rest of the project (Golden Gate Land Holdings LLC v. East Bay Regional Park Dist. (2013) 215 Cal.App.4th 353, 372-380); and particular regulations not impacted by a CEQA violation in their approval (POET II, supra, 12 Cal.App.5th at pp. 95-101). Severance requires a court to make findings that the portion of the project or activities are severable, severance will not prejudice CEQA compliance, and the remainder of the project does not violate CEQA. (Pub. Resources Code, § 21168.9(b); see, e.g., Center for Biological Diversity v. Department of Fish & Wildlife (2017) 17 Cal.App.5th 1245, 1257; Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1179-1180.) Agencies requesting severance under the statute should carefully craft their own severance findings to support the request, clearly articulating the reasons why the court can make the statutory findings in the specific case at issue.
Despite the broad range of remedies allowed under CEQA, monetary damages are unavailable. (See, e.g., Hecton v. People ex rel. Dept. of Transportation (1976) 58 Cal.App.3d 653, 656.) However, a prevailing plaintiff may seek to recoup their attorneys’ fees under a private attorney general theory. (See, e.g., Keep Our Mountains Quiet v. County of Santa Clara (2015) 236 Cal.App.4th 714, 736-741.) A prevailing party is also entitled to recover costs, including the reasonable costs of preparing the administrative record if they did so. (See, e.g., Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 774.) Click “Overview” on our Attorneys’ Fees and Administrative Record pages for further information.
Though interlocutory remand is permitted in mandamus actions generally (see Voices of the Wetlands v. State Water Resources Control Bd. (2011) 52 Cal.4th 499, 526-527 (Voices of the Wetlands)), in CEQA actions, courts have largely disapproved of allowing a trial court to issue an interlocutory remand back to the agency to fix deficiencies before reaching final judgment. (See Sierra Club v. Contra Costa County (1992) 10 Cal.App.4th 1212, 1221-1222, disapproved of on other grounds in Voices of the Wetlands, supra, 52 Cal.4th at p. 529; Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Cal.App.3d 886, 898-900 (Resource Defense Fund), disapproved of on other grounds in Voices of the Wetlands, supra, 52 Cal.4th at p. 529; see also Voices of the Wetlands, supra, 52 Cal.4th at p. 540 (conc. opn. of Werdegar, J.); but see Rapid Transit Advocates, Inc. v. Southern Cal. Rapid Transit Dist. (1986) 185 Cal.App.3d 996, 1002-1003 [upholding trial court decision to remand to agency to clarify ambiguous findings]; No Oil, Inc. v. Los Angeles (1974) 13 Cal.3d 68, 81 [acknowledging in a CEQA case that a trial court has the power to remand a matter to an agency to clarify ambiguous findings], superseded by statute on other grounds as stated in Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 929, fn. 18.)
On March 3, 2022 the California Supreme Court denied UC Berkeley’s (UC’s) request to stay enforcement of a trial court order capping its enrollment for the upcoming year. The denial is the latest development in ongoing CEQA litigation filed by...
In Central Delta Water Agency v. Department of Water Resources (2021) 69 Cal.App.5th 170, the Third District Court of Appeal considered three consolidated appeals arising out of long-term water contracts that have been the subject of repeated rounds of environmental review...
In Los Angeles Dept. of Water & Power v. County of Inyo (2021) 67 Cal.App.5th 1018, the Fifth District considered a challenge to a decision by Inyo County (County) to acquire landfill sites owned by the Los Angeles Department of Water...
In Alliance of Concerned Citizens Organized for Responsible Development v. City of San Juan Bautista, (2018) 29 Cal.App.5th 424, the Sixth District Court of Appeal held that the “substance and effect” of a decision labeled by the trial court as...
In Bottini v. City of San Diego (2018) 27 Cal.App.5th 281, the Fourth District Court of Appeal held that the City of San Diego (City) violated CEQA where it refused to rely on a categorical exemption and instead required that an...
In Creed-21 v. City of Wildomar (2017) 18 Cal. App. 5th 690, the Fourth District Court of Appeal held that the trial court did not abuse its discretion in imposing an issue sanction against Plaintiff Creed-21 (plaintiff) on standing, which...
In The Highway 68 Coalition v. County of Monterey (2017) 14 Cal.App.5th 883, the Sixth District Court of Appeal affirmed the trial court and upheld the County’s approval of a shopping center proposed by Omni Resources LLC (“Omni”), known as...
In an unpublished decision in Quartz Hill Cares v. City of Lancaster, 2014 Cal. App. Unpub. LEXIS 7571, the Court of Appeal for the Second District upheld the trial court’s discharge of a writ of mandate challenging an addendum to...
In an unpublished decision, Parks Legal Defense Fund v. City of Huntington Beach, (2014) Cal. App. Unpub. LEXIS 5050, the Fourth District Court of Appeal upheld the trial court’s jurisdiction to discharge a writ of mandate, but reversed and remanded...
In an unpublished decision in Civilian Conservation Corps Camp Interest Group v. Valley Center Pauma Unified School District, (2014) Cal. App. Unpub. LEXIS 4760, the Court of Appeal for the Fourth Appellate District, Division One, upheld the trial court’s denial...