[author: Michael Hansen]
The California Supreme Court unanimously declined to hear a challenge to the revised environmental impact report for the Playa Vista development in Los Angeles in Ballona Wetlands Land Trust v. City of Los Angeles, resulting in a published decision in the Second District Court of Appeal holding that CEQA does not require analysis of the effects on a project caused by the environment. Some commentators have declared that because the Supreme Court declined to hear the case, the provision of the CEQA Guidelines at issue in the case (Section 15126.2(a)) is not enforceable until there is a legislative fix. A more cautious approach would be to treat the provision as enforceable.
The most noteworthy issue in Ballona Wetlands concerned a portion of CEQA Guidelines Section 15126.2(a), which states:
"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." (italics added).
The petitioners in Ballona Wetlands alleged that the revised EIR failed to adequately analyze the impacts of potential sea level rise from global warming on the project under Section 15126.2(a). The Second District rejected this argument, stating: "We believe that identifying the environmental effects of attracting development and people to an area is consistent with CEQA‘s legislative purpose and statutory requirements, but identifying the effects on the project and its users of locating the project in a particular environmental setting is neither consistent with CEQA's legislative purpose nor required by the CEQA statutes."
The Second District then stated that an EIR need not analyze effects similar to those italicized in Section 15126.2(a) above, declaring that portion of the CEQA Guidelines and related questions in the Appendix G checklist invalid.
Some commentators have declared that because the Supreme Court declined to hear the Ballona Wetlands case, the provision in Section 15126.2(a) is not enforceable until there is a legislative fix. A more cautious approach would be to treat the provision as enforceable. Previous decisions with similar conclusions have not been followed by a change to Section 15126.2(a). In 1995, the First District in Baird v. County of Contra Costa, 32 Cal.App.4th 1464 held that the effect of the environment on the project is "beyond the scope of CEQA," yet OPR and the Natural Resources Agency have kept the provision in Section 15126.2(a) in place.
Additionally, it is not clear that the Second District's holding in Ballona Wetlands has upended CEQA's longstanding approach to environmental analysis, which has required consideration of the significant effects of the environment on a project. The decision did not challenge the portion of Section 15126.2(a) which states: "The EIR shall also analyze any significant environmental effects the project might cause by bringing development and people into the area affected." Nor did Ballona Wetlands explicitly overturn an earlier Second District case, which rejected "… the proposition an EIR need not consider the impact of a proposed project on a site where there are already adverse environmental conditions." Los Angeles Unified School Dist. v. City of Los Angeles (1997) 58 Cal.App.4th 1019.
Although other districts of the Court of Appeal may find the holding in Ballona Wetlands persuasive, it is not controlling in those appellate districts, and the Supreme Court's decision not to hear the case is not an endorsement of Ballona Wetlands. Future judicial decisions may determine whether the principle announced in Ballona Wetlands is adopted by other appellate districts or the Supreme Court.
Previous Sheppard Mullin article on Ballona Wetlands