Few would dispute that the California Supreme Court has played a leading role in judicial CEQA reform in recent years. It has clarified the law on the operation of CEQA’s statues of limitations, and attempted to bring more coherence and common sense to the fundamental rules and concepts governing the statute’s scope, operation and timing.
Having issued another major decision in 2013 clarifying the law on environmental baseline analysis (see Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439 [CEQA requires project impact assessment against “existing conditions” baseline, disallows sole reliance on “future conditions” baseline unless substantial evidence shows existing conditions baseline would be misleading or without informational value]), the Supreme Court is poised to tackle several more important CEQA issues in decisions that may be forthcoming the next year.
The high court currently has pending before it CEQA cases presenting the following major issues:
What is the proper standard of judicial review of the “unusual circumstances” exception to categorical exemptions? Berkeley Hillside Preservation, et al. v. City of Berkeley, et al. (Supreme Court Case No. S201116), review granted May 23, 2012.
Does CEQA ever operate “in reverse” to require analysis of the existing environment on a proposed project and its future occupants and users? California Building Industry Assn. v. Bay Area Air Quality Management Dist. (Supreme Court Case No. S213478), review granted November 26, 2013.
Is a City’s decision to adopt without change legislative project approvals proposed by a qualified citizen initiative petition, pursuant to its strictly circumscribed statutory options under Elections Code § 9214(a), a CEQA-exempt “ministerial” action or a “discretionary” decision requiring CEQA review? Tuolumne Jobs & Small Business Alliance v. Superior Court (Wal-Mart Stores, Real Party in Interest) (Supreme Court Case No. S207173), review granted February 13, 2013.
While it is unknown exactly when the Supreme Court will render its decisions in these matters, it is clear that the above cases present it with opportunities to shape and define CEQA’s scope and reach in profound ways that will affect California developers, public agencies, and land use consultants and practitioners for years to come. Hopefully, the Court’s CEQA jurisprudence will continue to follow the lodestar of “common sense” which it has so often invoked.