Are Courts Actively Limiting CEQA’s Scope In The Absence Of Meaningful Legislative Reform?*

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While no California Environmental Quality Act (“CEQA”) reform was achieved by the California Legislature in its last session, Senate President Pro-Tem Darrell Steinberg has indicated in a recently-issued statement that it will be a top priority in the next session. Not long before, Governor Jerry Brown was quoted in a Capitol Alert piece as calling legislative reform of CEQA “the Lord’s work.” Hopefully, he did not mean the quest for the Holy Grail. SB 317, the most significant effort at CEQA reform proposed last legislative session, died in the session’s waning days. While “hope springs eternal,” meaningful legislative reform of CEQA has thus continued to prove elusive. To paraphrase Senator Steinberg: “Wait ‘til next year!”

Virtually since its enactment, CEQA has produced controversy and calls for reform. The 1972 Supreme Court decision in Friends of Mammoth v. Board of Supervisors6 established the “EQA” (as it was then oddly, and briefly, known) as California’s preeminent environmental law, holding that it applied to approvals of private projects, and must be construed to provide “the fullest possible protection to the environment within the reasonable scope of the statutory language.” CEQA’s judicially-established “fair argument” test set a very low hurdle for requiring what have become (over the years) voluminous, expensive, and time-consuming environmental impact reports (“EIRs”), and has resulted in a correspondingly voluminous and complex body of case law — and continuing unsatisfied demands for meaningful legislative reform.

But the Legislature is not the only branch of government capable of “CEQA reform” — what the courts “giveth,” they may also “taketh away.” Indeed, it appears that a judicial trend toward cutting back on CEQA’s scope in various respects has emerged in many published appellate decisions rendered in recent years, under the leadership of the California Supreme Court. While certainly not an exhaustive catalogue of cases supporting (or for that matter contradicting) this thesis, skeptical CEQA reform advocates should consider the following case examples...

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