California Courts Close Loopholes in Definition of “Project” Under CEQA

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During the week of August 19, 2019, both the Appellate and Supreme Courts of California issued decisive opinions clarifying the parameters of agency action subject to environmental review under the California Environmental Quality Act, Cal. Pub. Res. Code § 21000, et seq., (“CEQA”). The courts were responding to repeated efforts by public entities to circumvent their CEQA obligations by redefining the actions that constitute a “project” subject to analysis under CEQA. Those public entities which have attempted to so minimize their exposure under CEQA include several airports in California, most notably, Los Angeles International Airport (“LAX”). In its environmental review of the Specific Plan Amendment Study of several years ago, LAX relied on precisely the Project Definition soundly rejected by the California courts as set forth below.

First, the Court of Appeal for the Second Appellate District, Division 3, found in Stopthemilleniumhollywood.com v. City of Los Angeles, B282319 (Certified for Publication 8/22/19), that the Real Party in Interest, Millennium Hollywood LLC had failed to satisfy its obligations under CEQA where the project description consisted of a “’conceptual plan . . . as an illustrative scenario to demonstrate a potential development program that implements the Development Agreement land use and development standards (the Concept Plan),’” p. 10 [emphasis in original]. Although the Court acknowledged that two other development proposals had been presented in the EIR, all were included as “possible development schemes, any of which could implement the development agreement and land use and development standards,” Id. at p. 11 [emphasis in original]. The Millennium court, agreeing with the court in Washoe Meadows Community v. Department of Parks & Recreation, 17 Cal.App.5th 277, 290 (2017), found that “Millennium’s failure to present any concrete project proposal, instead choosing concepts and ‘impact envelopes’ rather than an accurate, stable and finite project [description],” Ibid., p. 27, 14 CCR § 15378, failed to meet CEQA’s informational requirements. In addition, the Court found “[t]he problem with an agency’s failure to propose a stable project is not confined to ‘[its] informative quality . . .,’” Id., p. 22. Rather, it “impairs the public’s right and ability to participate in the environmental review process,” Id., citing Washoe Meadows, supra, 17 Cal.App.5th at 288.

Ironically, the Court indicated that an agency’s procedural lapse could be remediated by the subsequent environmental review of the individual projects included in the larger program EIR. See Stopthemilleniumhollywood.com, supra, p. 26, citing Citizens for a Sustainable Treasure Island v. City and County of San Francisco, 227 Cal.App.4th 1036, 1054 (2014). That position had, however, just two days earlier, been firmly rejected by the California Supreme Court in Union of Medical Marijuana Patients, Inc. v. City of San Diego, S238563. In that case, the Supreme Court held that “a local agency ‘cannot argue’ that approval of a regulation is not a project ‘merely because further decisions must be made’ before the activities directly causing environmental change will occur.” Union of Medical Marijuana Patients, supra, p. 37.

Airport operators and impacted citizens alike should pay close attention to the cited decisions as indicators of CEQA’s required scope of project definitions, as well as harbingers of ultimate success or summary failure of environmental review, based on the adequacy of the description of the project evaluated under CEQA.

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