Spring 2014 CEQA Roundup

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It’s that time of year again – business mixers, the Giants in first place in the NL west, the school year winding down, the NBA and NHL playoffs in full swing, coastal whale migrations, California bursting with beautiful weather, flora and fauna… and, of course, the Spring CEQA roundup! So here goes the latest potpourri of CEQA developments, big and small:

*           New Rules of Court address Environmental Leadership development project litigation. On April 25, 2014, and as required by 2013 legislation (SB 743) the Judicial Council adopted new Rules of Court governing and aimed at significantly expediting litigation of CEQA challenges to a select class of “green” mega’ projects, i.e., those certified by the Governor as “environmental leadership development projects.” The ambitious new rules, which seek to shave years off the litigation timeline for CEQA suits challenging such projects, will become effective July 1, 2014. They consist of the adoption of Cal. Rules of Court, rules 3.1365, 3.2200, 3.2220-3.2237, 8.700-8.705; renumbering and amendment of rules 3.1366 and 3.1367 as rules 3.2206 and 3.2207; renumbering of rules 3.1365 and 3.1368 as rules 3.2205 and 3.2208; amendment of rule 8.104; and repeal of rule 8.497.

 *           Supreme Court schedules oral argument in Tuolumne Jobs & Small Business Alliance “CEQA discretion” case.  On May 28, 2014, at 9 a.m. in its San Francisco courtroom, the California Supreme Court will hear oral argument in this significant Fifth District case (Supreme Ct., Case No. S207173), which is expected to address issues concerning the nature and degree of lead agency “discretion” in acting on a matter that is needed to trigger CEQA review. The case’s facts and key issues are addressed in my prior blog post of November 8, 2012, entitled Impossible and Useless CEQA Review Is Required If City Opts Under Elections Code to Adopt Legislative Project Approvals Proposed By Qualified Citizen Initiative Petition – Fifth District’s Holding In Walmart Rejects Fourth District Precedent and Creates Split In Authority.

*           Supreme Court is asked to depublish Third District decision addressing urban decay mitigation for Woodland project.  The Daily Democrat recently reported that the City of Woodland, the League of California Cities, and the California State Association of Counties have submitted a May 2, 2014 depublication request to the California Supreme Court regarding the Third District Court of Appeal’s partially-published decision in California Clean Energy Committee v. City of Woodland, which overturned approvals for a large mixed-use development project on the City’s outskirts on the ground that mitigation measures designed to ameliorate downtown urban blight in the City’s core were inadequate. The depublication request letter, authored by Whit Manley of Remy Moore & Manley, said the decision was inconsistent with published case law, would create uncertainty, and would increase CEQA compliance costs and litigation. For a look at the court of appeal decision’s key issues and holdings, see my blog post of April 14, 2014, entitled “Some CEQA Reminders From The Third District: Urban Decay Requires Actual Mitigation When Identified By EIR As A Significant Project Impact – And Be Careful What You Find.

*           Supreme Court “CEQA-in-reverse” case:  briefing proceeds, amici weigh in. On April 28, 2014, the California Supreme Court granted the applications and filed briefs of numerous amici curiae (“friends of the court”) in the “CEQA-in-reverse” case, California Building Industry Association v. Bay Area Air Quality Management District, Cal. Supreme Court, Case No. S213478. Weighing in on the side of BAAQMD’s position that CEQA operates “in reverse” – i.e., that it requires an analysis of the existing environment’s impacts on a proposed future project and its occupants – were amici South Coast Air Quality Management District, Center for Biological Diversity, Sierra Club, The Natural Resources Defense Council, The Planning and Conservation League, California Chapter of the American Planning Association, California Association of Environmental Professionals, and Communities for a Better Environment. Supporting CBIA’s position that CEQA does not, as a general matter, operate “in reverse” were amici Center for Creative Land Recycling, Bridge Housing, Burbank Housing, Nonprofit Housing Association of Northern California, First Community Housing, San Francisco Housing Action Coalition, California Infill Builders Federation, Bay Area Planning Coalition, East Bay Leadership Council, Orange County Business Council, San Mateo County Economic Development Association, and Silicon Valley Leadership Group. Amici League of California Cities and the Counties of Kings, Tulare and Solano filed a neutral brief (one in support of neither party) drafted by myself and Matt Henderson, which supports the position that CEQA generally requires analysis of a proposed project’s potential effects on the existing environment, but not the existing environment’s effects on the proposed project. To access my April 22, 2014 blog containing a link to that brief, see “Miller Starr Regalia Files Neutral “CEQA-in-Reverse” Case Amici Brief in California Supreme Court on Behalf of League of California Cities and Several Counties.

*           Miller & Starr California Real Estate Law treatise to publish rewritten CEQA chapter. I have been working over the past 7 months on a comprehensive rewrite and update of Chapter 25A (“CEQA”) of Miller & Starr, Cal. Real Estate 3d, the treatise authored by my firm’s attorneys and known among us as “the Book.” The CEQA chapter first appeared 7 years ago, in 2007, and was “broken out” as a separate chapter that was drawn from portions of the Book’s former “Subdivisions” chapter.  Obviously, there have been many significant CEQA developments, both legislative and judicial, over the past seven years; accordingly the CEQA chapter’s supplement had grown quite large and its main text in need of updating. I’m happy to report that the rewritten CEQA chapter is slated to go to the publisher shortly, and that publication is anticipated sometime in late summer or fall 2014.

The year ahead promises an abundance of interesting CEQA developments. For now, enjoy your Spring… and go Giants!

 

Topics:  CEQA, Environmental Policies, Environmental Review

Published In: Civil Procedure Updates, Environmental Updates, Zoning, Planning & Land Use Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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